P L D 1958 (W (PLP)

MUHAMMAD SHAFI, J.‑Under section 11 of the Frontier Crimes Regulation, 1901 (III of 1901). 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 of 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 "Council of Elders" under section 2 (a) meant a Council of three or more persons convened according to the Pathan, Baluch, or other usage, as the Deputy Commissioner may in each case direct. On the 29th of February 1952, the Chief Secretary of the defunct North‑West Frontier Province addressed Memorandum No. 7031‑36/14/277 to all the Deputy Commissioners to the following effect :‑ "In order to improve the present system for the disposal of Jirga cases and to improve the confidence amongst the people in the matter of Administration of Justice, it has been decided that Jirga cases under the Frontier Crimes Regulation should in future be decided by Tribunal of three competent Magistrates to be selected by the Deputy Commissioner. If the number of the trial Magistrates is inadequate, Tehsildars may be appointed as Jirga Members." Thereafter the Deputy Commissioners in all cases nominated and appointed Magistrates as the Members of the Council of Elders. In some rare cases non‑Magistrates were also associated with the Magistrates, but the majority of the Members even then were the Magistrates. The validity of the Council of Elders so constituted came up for decision before a Division Bench of the defunct Judicial Commissioner's Court of North‑West Frontier Province of which I had the honour to be a Member, in Miscellaneous Applications Nos. 18 and 46 of 1954, Ghulam Muhammad Khan of Loond Khwar v. Crown (P L D 1955 Pesh. 1) and Hamesh Gul v. Crown (P L D 1955 Pesh. 45) respectively, decided on the 24th of November 1954. It was held therein that the appointment of Magistrates holding powers under the Criminal P. C., to the Council of Elders was not warranted by law. It was further held that the Memorandum mentioned above could not be said to have altered the definition of the Council of Elders as given in section 2 (a) of the Frontier Crimes Regulation. This decision was upheld by the Federal Court of Pakistan in Criminal Appeals Nos. 45 and 46 of 1955, Crown v. Ghulam Muhammad Khan of Loond Khwar (P L D 1956 F C 197) and Crown v. Hamesh Gul (3) Their Lordships held that the convictions under the Frontier Crimes Regulation were illegal, inasmuch as the Council was not lawfully constituted, there being not a pretence of following the Pathan, Biluch or other usage for a Jirga as prescribed by section 2 (a). Their Lordships further held that the direction of the Provincial Government requiring the appointment of Magistrates to the Council was ultra vires. These decisions resulted in rendering illegal a large number of convictions under the Frontier Crimes Regulation, and as a consequence thereof hundreds of petitions under section 491 of the Criminal P. C., 223‑A of the Government of India Act, and Article 170 of the Constitution of Islamic Republic of Pakistan, were instituted in this Court. The Legislature of the defunct North‑West Frontier Province in order to legalize these convictions enacted two Acts. One is Frontier Crimes (North‑West Frontier Province) Validation of Orders, Proceedings, Sentences and Acts), XII of 1954, and the other is Frontier Crimes Regulation (North‑West Frontier Province Amendment) Act XIII of 1954. By the former Act, all orders made, proceedings taken, sentences passed and acts done in all the six districts of the North‑West Frontier Province by the Provincial Government, or by any authority subordinate to the Provincial Government, or by any person, which were made, taken, passed, or done in exercise of the powers derived or believed to be derived from the provisions of the Frontier Crimes Regula tion, 1901 (III of 1901), or in execution of or in compliance with any orders made, or sentences passed by the Provincial Government or by any authority subordinate to the Provincial Government, in exercise or purported exercise of powers as aforesaid were confirmed and were deemed to be and always to have been validly made, taken, passed or done and for the purposes of the said Regulation and of any other law for the time being in force all such orders, proceedings, sentences and acts shall be as good and valid as if they were made, taken, passed or done under and in accordance with the provisions of the said Regulation. By the second Act, the definition of the Council of Elders was altered to a Council of three or more persons, whether officials or otherwise convened by the Deputy Commissioner and presided over by a Magistrate invested with powers under section 30 of the Code of Criminal Procedure, 1898. Both these Acts received the assent of the Governor‑General of Pakistan on 10th December 1954. It is to be seen what effect these two Amending Acts have on the convictions which were considered illegal as a result of the decision of their Lordships of the Federal Court, or which have been made thereafter with the 'Magistrates as the members of the respective Council of Elders. The only ground on which these Acts were challenged was that the original Regulation having been promulgated by the Governor‑General of the prepartitioned India, the Provincial Legislature had no jurisdiction to pass them. The arguments on this point canvassed at the Bar were so lukewarm that they lacked in clarity and were completely unintelligible. So far as they could be followed they were to the effect that the subject‑matter of the Frontier Crimes Regulation, and for that matter of the Amending Acts was not covered by any of the three Legislative Lists in the Seventh Schedule to the Government of India Act and so the Provincial Legislature, before passing the Amending Acts, should have had a recourse to the Governor‑General to confer upon it the necessary power as envisaged in section 104 of the Government of India Act. In advancing this argument the learned counsel seems to have either overlooked Items 1 (a), 2, 4 and 5 or got an erroneous and confused impression of them. If the Frontier Crimes Regulation is critically examined, it will be found that sections 8, 9 and 10 deal with the Civil Procedure (Item 4), sections 6, 12, 22, 23, 29 and 30 with Criminal Law (Item 1 (a) and the rest of the sections, including section 11, with Criminal Procedure Item 2). Some of the provisions of the Regulation may well be covered by Item 1 (b) "measure to combat certain offences committed in connection with matters concerning the Central and the .Provincial Governments." Learned counsel for the petitioners is correct in so far as saying that the Amending Acts were repugnant to the provisions of the earlier Federal Law, namely, the Frontier Crimes Regulation, but then he forgot that the repugnancy was removed and they were made compatible and congruous with the Federal Law by reserving them under section 107, subsection (2) of the Government of India Act for the consideration of the Governor General and receiving his assent. This being the case, I am clearly of the opinion that the Amending Acts were intra vires of the A Provincial Legislature. So far as the exercise of power by the Deputy Commissioner, Commissioner and other authorities under the Frontier Crimes Regulation is concerned, though they are not Courts as seem to have been impliedly held in Samandur v. Crown (P L D 1954 FC 228) yet it is clearly legalized by section 49 (2) of the Govern ment of India Act, which lays down that subject to the provisions of the Government of India Act, the Executive Authority of each Province extends to the matters with respect to which the Legisla ture of the Province has power to make laws. Apart from what has been stated above, the Amending Acts' would be good laws under Article 224 of the Constitution of Islamic Republic of Pakistan, which lays down that notwithstanding the repeal of the enactments mentioned in Article 221, and save as is otherwise expressly‑ provided in the Constitution, all laws (other than those enactments), including Ordinances, Orders‑in- Council, Orders, rules, bye‑laws, regulations, notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Constitution Day, shall, so far as applicable and with the necessary adaptations, continue in force until altered, repealed or amended by the appropriate legislature or other competent authority. The effect of the Amending Acts, will, thus be that although the Council of Elders which gave the decision forming the basis of the convictions was not constituted in accordance with section 11 read with section 2 (a) of the Frontier Crimes Regulation, yet it will be deemed to have been so constituted, and for that reason, the convictions based upon their opinion, would be taken as having been made under and in accordance with the pro visions of the Frontier Crimes Regulation. This being the case the convictions on that count become unassailable. It is then urged by the learned counsel for the convicted persons that the provisions of the Frontier Crimes Regulation offend against "the equality before law and equal protection of law clause" embodied in Article 5 of the Constitution of Islamic Republic of Pakistan, and are, therefore, void. On this assumption it is urged that the convictions based on the void law are not maintainable. In order to appreciate the points raised in this connection, it will be necessary to set out the different provisions of the Frontier Crimes Regulation. At the time when this Regulation was enacted several other enactments, including the Criminal P. C., the Civil P. C., Penal Code etc., were already in operation in the districts of Peshawar, Kohat, Hazara, Bannu and Dera Ismail .Khan just as they were in the rest of the India as the country then was. Mardan, which was carved out of Peshawar District, was subsequently added to these five districts by the Frontier Crimes Regulation (North‑West Frontier Province Amendment) Act XIII of 1954. Those other enactments were left intact by section 3 (2) of the Regulation, but only "when the contrary was not expressed or implied". The function of the Regulation was expressed in the preamble "further to provide for the suppression of crime" in certain Frontier Districts, because it was expedient so to do. Under section 1, subsection (3) the Regulation extended to all the six districts, but the Local Government was empowered to exempt any local area from the operation of all or any of its provisions by a Notification in the local official Gazette. Under subsection (4), sections 1 to 5, 10, 20, 21, 26 to 28, 31, 32, 36, 37, 56 and 60 to 64 were of general application, but the remaining sections could be enforced in whole or in part as the case may be, only against the Pathans and Biluchs, and against such other classes as the Local Government, may by Notification in the local official Gazette declare to be subject thereto. The Notification could 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. The word "class" included 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. Under section 3, the pro visions of the Regulation were to take effect in cases to which they applied notwithstanding anything contained in any other enactment. Section 4 of the Regulation authorised the Local Government to appoint any Magistrate or Magistrates of the First Class to be Additional District Magistrates who had all the ordinary powers of a District Magistrate specified in the 5th Part of the Third Schedule of the Code of Criminal Procedure, 1898. When exercising any of the powers of a Deputy Commissioner under this Regulation an Additional District Magistrate was deemed to be a Deputy Commissioner. Under section 5, the District Magistrate could withdraw any case from or recall any case which he had made over to an Additional District Magistrate, whether the Additional District Magistrate was exercising jurisdic tion with respect to the case as a Magistrate or as a Deputy Commissioner. He could then either dispose of the case himself or refer it to such other Magistrate for inquiry or trial as the case may be. Under section 6 of the Regulation in certain cases a sentence of whipping could also be passed in addition to any other punishment which may be imposed under the P. P. C. Section 7 amended section 337 of the Code of Criminal Procedure, 1898. Section 8 authorised the Deputy Commissioner to refer civil dispute for the decision of the Council of Elders. Section 9 was with regard to the effect of the decree based on the finding of the Council of Elders. Section 10 excluded the jurisdiction of the ordinary Civil Courts where the Deputy Commissioner had proceeded under section 8, subsection (3) clauses (a), (b) and (d). Section 11 authorised the Deputy Commissioner or the Commis sioner to refer criminal cases to the decision of the Council of Elders. Section 12 laid down the punishments which could be awarded by the Deputy Commissioner to the persons found guilty by the Council of Elders. Section 13 laid down the manner of enforcing the sentences. Under section 14 the Commissioner and the Deputy Commissioner could only exercise the powers under section 11 in cases committed to the Court of Session at any time before the trial before that Court had commenced and in cases pending before any Court inferior to the Court of Session, at any time before an order of conviction or acquittal had been made. Under section 15, a Public Prosecutor could in any trial before a Court of Session, when instructed in writing, in that behalf by the Commissioner or the Deputy Commissioner, withdraw from the prosecution of the accused person at any time before an order of conviction or acquittal had been made in order that the case may be' referred to the Council of Elders. Under section 16, the powers conferred by section 11 as limited by section 14, could be exercised against and the withdrawal of a prosecution under section 15, may have reference to, one or some only of two or more persons jointly accused of an offence. Under section 17, the Deputy Commissioner, on re‑consideration, was authorised to set aside any order, of the Deputy Commissioner under . this Regulation directing a reference to a Council of Elders, or refusing to make such a reference. Sections 18, 19 and 20 of the Regulation are procedural. Section 21 authorised the Deputy Commissioner with the previous sanction of the Commissioner, to direct the seizure, wherever they may be found, of all or any of the members of the Frontier tribe or of any section or members of such tribe acting in a hostile or unfriendly manner towards the British Government or towards persons residing within British India, and of all or any property belonging to them or any of them as well as the detention in safe custody of any person or property so seized and the confiscation of such property. The Deputy Commissioner with previous sanction of the Commissioner could by public proclamation debar all or any of the members of the tribe from all access into British India and prohibit all or any persons within the limits of British India from all intercourse or communication of any kind whatsoever or of any specified kind or kinds, with such tribe or any section or members thereof. Section 22 authorised the Deputy Commissioner with the previous sanction of the Commissioner, to impose a fine on the inhabitants of certain villages in the event of any crime having been committed with the connivance of the inhabitants of such village or when they failed to render all assistance in their power to discover the offenders or to effect their arrest, or connived at the escape of, or harboured any offender or persons suspected of having taken part in the commission of an offence or combined to suppress' material evidence of the 'commission of an offence. Section 23 raised a presumption against the village community of their liability to be fined under section 22 if a person was dangerously or fatally wounded by an unlawful act, or the body was found of a person believed to have been unlawfully killed. Under section 24 the fines imposed under section`'22, could be recovered as arrears of land revenue. Sections 25 and 26 dealt with forfeiture or remissions of revenue etc., and of public emoluments in cases which were covered by section

22. Section 28 saved the powers of the Local Government with regard to the grant, continuance, or forfeiture in whole or in‑part, of any assignment or remission of land revenue, or of any allowance paid out of public funds: Section 29 made it an offence for a person 'to carry arms in such a manner or in such circumstances as to afford just grounds of suspicion that the arms were being carried by him with intent to use them for an unlawful purpose, and when that person had taken precautions to elude observation or evade arrest, or was found after sunset and before sunrise within the limits of any Military Camp or Cantonment or of any Municipality. Section 30 was complementary to sections 498 and 497, P. P. C., and made the woman as much guilty as the man. Section 31 prohibited the erection of new villages or towards on frontiers without the sanction in writing of the Commissioner. Section 32 authorised the Local Government to direct the removal of villages situated in close proximity to the frontier of British India or to any other site within five miles of the original site, after awarding compensa tion to the inhabitants. Section 33 enjoined that no building of the kind commonly known as a Hujra or a Chauk shall be erected or built and no existing building not now used as a Hujra or Chauk shall at any time be used as such without the previous sanction, in writing, of the Deputy Commissioner. Failure to observe this rule was an offence. Section 34 authorised the Deputy Commis sioner to order the demolition of any building which was habitually used as a meeting place of robbers, house‑breakers etc. Section 35 authorised the Deputy Commissioner to impose a fine where the village community failed to provide, if the custom to that effect existed, the Naubati Chaukidars, for watch and ward duties. The Deputy Commissioner under subsection (3) could introduce the custom of 'providing the Naubati Chaukidars if it did not exist before, or review it if it had fallen into disuse. Under section 36, the Deputy Commissioner could order any person who was a dangerous fanatic or belonged to a frontier tribe and had no ostensible means of subsistence or could not give a satisfactory account of himself or had a blood feud or had occasioned cause of quarrel likely to lead to blood‑shed, to reside beyond the limits of the territories to which Regulation extended or at such place within the said territories as may be specified in the order. Section 37 laid down the penalty for the breach of orders passed under sections 31, 21; 32, 34 or

36. Section 38 amended section 46 of the code of Criminal Procedure of 189$ and gave a right to cause the death of a person found committing or attempt ing to commit offence, or resisting or evading arrest, in such circumstances as to afford reasonable ground for believing that he intended to use arms to effect his purpose, or if a hue and, cry had been raised against him of his having been concerned in such an offence as was specified in clause (a) or of his committing or attempting to commit an offence, or resisting or evading arrest, in such circumstances as were referred to in the said clause. Section 39 authorised arrest without warrant in cases. under section 498, P. P. C. Sections 40 and 41 may be reproduced here in extenso :‑ Section 40 :‑"(1) Where the Commissioner or the Deputy ‑Com missioner is of opinion that it is necessary, for the purpose of preventing murder or culpable homicide not amounting to murder, or the 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 Commis sioner, 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. (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 I.P.C., 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 subsection (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." Section 41 :‑"Where a blood feud or other cause of quarrel likely to lead to bloodshed exists, or in the opinion of the Deputy Com missioner, is likely to arise between two families or factions, the Deputy Commissioner may, on the recommendation of a Council of Elders, or after inquiry as hereinafter provided, order all or any of the members of both families or factions or of either family or faction to execute a bond, with or without sureties, for their good behaviour or for keeping the peace. as the case may be, during such period not exceeding three years, as he may fix." Section 42 laid down the procedure for inquiry under the above two sections. Section 43 laid down the consequences of the breach of the bond and section 44 provided an imprisonment in default of security. Section 45 was complementary to section 44, and laid down the length of the imprisonment. Section 46 authorised the Deputy Commissioner to demand further security from the persons already bound. Section 47 modified certain provisions of the Code of Criminal Procedure. Section 48 debarred the right of appeal to any person proceeded against under the Regulation. Section 49 authorised the Commissioner to call for the record of any proceeding under this Regulation and revise any decision, decree sentence, or order given, passed or .made therein. Sections 50 to 55 laid down the rules for the guidance of the Commissioner in the exercise of his revisional powers. Sections 56 and 57 related to the recovery of fines from the relatives of the persons liable, and power of the Deputy Commis sioner to order disposal of certain fines. Section 58 related to the maintenance of the registers by the Commissioner and Deputy Commissioner as approved by the Local Government. Under section 59 offences under sections 29 and 30 may be tried by a Court of Session or by a Court of Magistrate of the First Class. Section 60 gave the finality of the proceedings under this Regula tion and laid down that no decision, decree, sentence, or order given, passed, or made, or act done, could be called in question in, or set aside by, any Civil or Criminal Court, section 61 related to the application of certain provisions of the P. P. C., respecting fine and imprisonment. Section 62 authorised the Local Govern ment to make rules to carry out the purposes and objects of this Regulation. Section 63 afforded protection to persons acting the Regulation. Finally, section 64 repealed the provisions of the Punjab Frontier Crimes Regulation of 1887. Learned counsel for the petitioners opened his attack on the Frontier Crimes Regulation, which for brevity sake, will hereinafter be called as the Regulation, by describing section 1 (3) as conferring naked and arbitrary power on the local Government in authorising it to exempt any local area of the six districts, to which the Regulation extended, from the operation of the whole or part of it by just issuing a notification in the local official gazette. According to the learned counsel, door is open for the Local Government to say that all the six districts excepting Charsadda or any other local are4 afe expluded from the operation of the Regulation without giving any reason, because the Regula tion does not lay down any guiding principle or enact expressly or impliedly the circumstances under which those powers can be exercised by the relevant Government. When the attention of the learned counsel was drawn to, the fact that the Local Government, since the inception of the Regulation, has never exempted any area from the operation of the Regulation, he contended that it will still make no difference, because the Local Government may at any future time exercise this power arbitrarily and even capriciously and maliciously, and thus introduce discrimination repugnant to Article 5 of the Constitution. Inviting our attention to subsection (4) of section 1, he forcefully argued that herein Legislature has selected quite arbitrarily Pathans and Biluchis as its particular victims, and has then permitted the Local Government to select "any person who may be collectively described as "class" and apply to it all or an\ of the provisions of the Regulation. There is, it is claimed with regard to this power of the Local Government, a complete absence of rules guiding and controlling the exercise of discretion of the Local Government. Criticising Notification No. 72, dated the 9th of April 1902. the learned counsel submitted that even though the notification covers all persons born or ordinarily resident in the aforementioned districts, yet the Government may revoke this notification and apply it, say to all persons who have black hair. Those persons would be a "class" because, according to the definition of the word given in the Regulation, they can be collec tively described as such in the notification. He concluded that the power under this section could be exercised in a manner involving discrimination. It is further urged that the Notifica tion by exempting European British subjects from the operation of the Regulation has introduced invidious and unjust discrimina tion between one class of people born and ordinarily residing in the districts and the other, viz., the Europeans and the non- Europeans. The learned counsel in support of his argument has cited the following three authorities :‑ (1) Jitiendra Kishore Achharyya Chowdhury v. The Province of East Pakistan and Secretary, Finance and Revenue Department, Government of East Pakistan (P L D 1957 S C (Pak.) 9), This judgment will have, to be referred most extensively in this case, because it has a direct bearing on it. At this stage, however, the learned counsel has only quoted a sentence from page 38, wherein my Lord the Chief Justice of Pakistan, who delivered the judgment, observed rather emphatically that a classification that proceeds on irrelevant con sideration, such as difference in race, colour, or religion, will certainly be rejected by the Courts. On the basis of this argument, it is contended that subsection (4) of section 1, which applies the Regulation to Pathans and Biluchis whom he styled as the two races, is clearly hit by Article 5 of the Constitution. (2) The judgment of the Full Bench of West Pakistan High Court of which I had the honour to be a member in case Khan Abdul Akbar Khan v. The Deputy Commissioner, Peshawar (P L D 1957 (W. P.) Pesh, 100). The facts of this case were that one Fazal Qadir Khan of Tangi Nasratzai, in Peshawar District, had in 1936, gifted away most of his property in favour of his eldest son, Khan Abdul Akbar Khan, In 1953, the father applied to the Deputy Commissioner, Peshawar, for setting aside the aforementioned gifts. This application was rejected by the then Deputy Commissioner, Peshawar, but later on, at the instance of Mr. Mussarat Hussain Zuberi, the Commis sioner of Peshawar Division, it was revived and steps were taken to refer the dispute for the decision of the Council of Elders under section 8 of the Regulation. Kayani, J., who delivered the judgment, observed as follows:‑ "It may be that in 1901 the Pathans and Biluchis were not sufficiently advanced to be able to avail of the ordinary law, arid that it appeared simpler, in suitable cases, to refer their disputes to their own Elders, who would naturally apply their own custom or the Muslim Law to it, and if the Deputy Commissioner found it to be against good conscience he would not accept the decision. But if that reading is correct, then the situation has radically altered and there is no problem facing the Government now so as to necessitate a classification. In fact, the Government also seems to have realized in 1954 the altered character of the situation by altering the definition of the "Council of Elders". The learned Judge in holding that the classification of Pathans and Biluchs amounts to racial discrimination and is as open to criticism as discrimination between a negro and a white man, observed as under :‑ "It is true that for the purpose of classification the distinction between a Pathan and a non‑Pathan or a Biluch and a non Biluch is real and substantial. But the process of classifica tion has to be rational at all stages : the object for which discrimination is sought should also possess that quality. If the quality of belonging to a well‑defined class were enough for discrimination, we might as well expect a law that for the further suppression of crime all Pathans should be sterilised. If, however, we had a law providing for the sterilisation of all persons who had committed theft or misappropriation thrice or more, it would be an instance of reasonableness . in the object of classification". (3) Malik Tooti Khan and Mehraban Khan v. The District, Magistrate and Deputy Commissioner, Sibi Writ Petition No. 17 of 1957 (P L D 1957 Quetta 1), decided by the Chief Justice and Mr. Justice Yaqub Ali, on the 5th August 1957. In this case, the judgment was delivered by my Lord the Chief Justice of West Pakistan High Court. In this case, the question of guilt or innocence of the petitioners had been referred for the decision of the Council of Elders under section 11 of the Regulation. It will not be out of place to mention here that the Regulation which applies to the six districts mentioned above also applied to Baluchistan. The learned Judges considered section 1, subsection (4) along with section 11 of the Regulation, and held that there was no guiding principle prescribed by which the discretion of the executive authorities as regards the choice of forum was to be regulated. The above provisions of the Regulation, therefore, to the extent that it permitted arbitrarily the case of persons belonging to the Pathan or Biluch tribe, or of any individual member of such idbe, to be referred to a lirga, were ultra vines of Article 5 of the Constitution and must be declared to be void under Article 4 of the Constitution. It is clear from the judgment that their Lord ships did not consider that section 1, subsection (4) standing apart from section 11 of the Regulation, was in any way, hit by Article 5 of the Constitution. It must at the 'very outset' be mentioned that if section 1 perishes, then it being the very basis of the Regulation, the whole of the Regulation is completely destroyed. There is, therefore, no point in saying that although this section is struck out of the Regulation there might still remain some of its provisions which can be brought into operation. It is a well settled principle of law that the legislature must be presumed to understand and correctly estimate the varying needs of the people within its jurisdiction and to enact laws which conform with the known facts of every day experience in order to further the country's advance towards its goal of a welfare state. Every enactment, therefore, must be presumed to be constitutional and the onus lies very heavily to show that it is unconstitutional upon the party, which impugnes it. I am fortified in this opinion by several authorities: Ramaswami,'C. J., in case Shrimiti Ghaya Devi v. The State of Bihar and others at p. 51 Column (A I R 1957 Pat. 44 at p. 51 column (1)) quoted the following paragraph from Middleton v. Texas Power and Light Company (1919) 249 J. S. 162, :‑ "It muse be presumes that a Legislature understands and correctly appreciates the needs of its own people, that; its laws are directed to problems made manifest by, experience and that its discriminations are based upon adequate grounds : His Lordship further quoted the,, Words of Justice Stone in Metro‑politan Casualty Insurance company v. Brownell (1935) 294, U. S. 520 :‑ "It is a salutary principle of judicial decisions long emphasised and followed by this Court that the burden of establishing the, unconstitutionality of a statute rests on him who assails it." The same view was expressed by Fazl Ali, J., in an earlier case Charanjit Lal v. Union of India, and others (A I R 1951 S C 41). His Lordship remarked as under :,‑ "It, is the accepted doctrine of the American Courts which I consider to be well‑founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles." His Lordship then quoted with approval the enunciation of this doctrine in Middleton's case referred to above. Same view with regard to the onus and presumption was expressed by Das, J., at page 58: The Supreme Court of India reiterated this doctrine in the State of Bombay v. F. N. Balser (A I R 1951 S C 318). It is, thus, clear that it is the petitioners who have to prove and prove affirmatively that the whole Regulation or part thereof is hit by the Constitution of Islamic Republic of Pakistan. Article 5 of the Constitution runs as under :‑ "All citizens are equal before law and are entitled to equal protection of law." Its counter part in the Indian Constitution is Article 14, which is to the following effect :‑ "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." There is a slight difference in the language of the two Article, but in substance, they appear to be exactly identical. Both guarantee to the citizens of their respective countries "equality before the law" and equal protection of the late". The equality before‑law clause seems to have been adopted from the Constitu tion of Eire and. West Germany and the equal protection of the laws clause detached from the Fourteenth Amendment of the American Constitution. Cases from Eire and West Germany arc not available in Peshawar, but this phrase has also been accepted by the English Common Law and discussed by Dicey and other Constitution Writers of Great Britain. Their views no doubt can be of considerable help in interpreting Article 5, but they cannot be accepted in their entirety because in the British Constitution unwritten though it is, the Parliament is the Supreme body, and no restrictions whatever are placed on its power to make or unmake any law even if it affects fundamental rights and liberties of the people as ensured by our Constitution. On the other hand in the Constitution of Islamic Republic of Pakistan under Article 4, even the Parliament cannot make any law which takes away or abridges the rights conferred by Part III, which includes Article

5. In fact, as regards the existing law or any custom or usage having the force of law, the Constitution has rendered them void in so far as they are inconsistent with the provisions of this Part. The same is the case with the American Constitution. While the Fourteenth Amendment does not talk of equality of law it confuses the equal protection of law with due process of law, the phrase which does not occur in our Constitution. This phrase was first introduced in 1355 in the famous document called Magna Carta. It was declared "no man of what state or condition so ever he be shall be put out of his lands or tenements, nor taken nor imprisoned, nor indicted, nor put to death without he be brought in to answer by due process of law. "Though introduced as early as that the due process of law clause still remains vague and indefinite. In America its scope has varied with the circum stances of each case. This is what my Esteemed Lord the Chief Justice of Pakistan said about this phrase in Jibendra Kishore etc., v. The Province of East Pakistan and others (P L D 1957 S C 9 at p.31). After reproducing Mr. Brohi's argument his Lordship observed :‑ "There is considerable force in this contention because our Constitution does not use and could not have used the due process of law clause in guaranteeing primary rights in the sense in which that clause has been interpreted by the Supreme Court of the United States. That Court has scrupulously avoided giving an exact definition of "due process of law", and all that can be gathered from the leading decisions on the subject is that no law can be said to be in accord with "due process of law, if it contravenes certain basic principles of Justice and liberty, which are above the law that may be made by the Congress or by a State Legislature." His Lordship continued to say a little further :‑ "It is thus obvious that in determining the constitutionality or otherwise of statutes in Pakistan we cannot have that approach to the question because there is no provision in out Constitution which is capable of such a flexible and varying meaning as the due Vrocess of law part of the Fifth and the Fourteenth Amendments." On the same point Fazl Ali, J., of the Supreme Court of India in case the State of West Bengal v. Anwar Ali Sarkar and another (A I R 1952 S C 75), wrote thus at page 83 :‑ "The provision of the American Constitution which corres ponds to Article 14, has, ever since that Constitution been in force, greatly exercised the minds of the American Judges, who, notwithstanding their efforts to restrict its application within reasonable limits, have had to declare a number of laws and executive acts to be unconstitutional. One is always amazed at the volume of the law which has grown round this provision, which shows the extent to which its vide language can be stretched and the large variety of situations in which it has been invoked." Article 5 of our Constitution and Article 14 of the Indian Constitution are none the better. Their scope has always varied with the whims of the Judges and the peculiar circumstances of each case. To use the words of Fazl Ali, J., in the aforemen tioned authority "Article 14 is as widely worded as if not more widely worded than, its counterpart in the American Constitution and is bound to lead to some inconvenient results and seriously affect some pre‑Constitution Laws." In India where the Constitution was framed earlier than us, different interpretations which have been placed upon Article 14, by the learned Judges of the Supreme Court, sometime on the same set of facts, is really amazing. Here in Pakistan, we are still struggling to formulate a definite concept of Article 5 as to what it stands for and what it actually means. If the Article is taken in its literal meaning and construed strictly, it will certainly lead to some most absurd results. It can be argued as to why should the agriculturists pay a nominal amount as land revenue and the non‑agriculturists assessed to fabulous amounts in the shape of income‑tax, or why should there be one law on the same subject for the territory heretofore known as Punjab and different law for North‑West Frontier Province. The Pre‑emption Act is one example and there are many others which may not be repeated in this judgment. Again it may be said as to why should there be one rule of succession in Shias and another in Hanafis. A citizen may well complain as to why the Ministers and other important persons in Pakistan go about in Government owned cars even if they have got to go for one furlong while the other less fortunate people have to tramp miles and miles sometime in the burning hot sun on foot. It is an obstinate fact that Pakistan like any other country is inhabited by people of different characteristics, mentality, habits customs and traditions, nature, itself, has divided human race into different categories. Then how is it possible that all citizens should be equal before law or be afforded equal protection of law. The State has to deal with multiple problems peculiar to different classes of people living in different parts of the same country or people living in the same part, but divided into separate groups either on racial, religious, economic or social basis. The State may have to adopt special measures in order to encourage one industry and not the other. It may have to frame the laws to improve the mineral wealth of the country in one way and agriculture in the other. It cannot be denied that it is the function of the Government to discern evil and take steps to combat it, to appreciate the needs of the people and satisfy them. It has also to perform multiple other functions such as maintain law and order, look to the education of the people, their health and their housing problems. It has also to provide the ordinary conveniences like gas, water, electricity and savings bank facilities. The dogged adherence to the literal meaning of Article 5 will in evitably make us fall away from those standards of objectivity and realism that are absolutely essential "for running the State. It may well lead to bungling and untold human suffering. In a society of unequal basic structure it is impossible to make laws suitable in their application to all persons alike. It is, thus,' absolutely necessary that the Courts must qualify the general and vague. language of Article 5 of the Constitution by recognizing that K the State has the power to make laws which operate differently on different classes of people in the governance of its subjects. English Constitution writers maintain that equality before the law clause is somewhat inactive concept implying the absence of some special privilege in favour of any individual of the equal subjection of all classes to the ordinary law. Jennings has further restricted the meaning by saying that "equality before the law means that among equals the law should be equal and that law should be equally administered and that like should be treated alike." Pro tection of law clause, if it is in any way different from the preced ing clause, then all that it affords is a positive concept implying the equality of treatment in equal circumstances. The essence of the rights is that all persons placed in a like situation have the same rights and privileges and bear the same burden. Both clauses taken together mean nothing more than this that law must have universal application to all persons who are placed in the same position by nature, attainment and circumstances. Here I may quote the observations made by Machkenna, J., in his dissenting judgment in Connolly v. Union Seway Pipa Company ((1902) 840 U.S. 540) :‑ "It seems like a contradiction to say that a law having inequality of operation may give equality of protection. Viewed rightly, however, the contradiction disappears. The Government is not a simple thing. It encounters and must deal with the problems which come from variety of people. Classification is the recognition of this relation and in making it a legislature must be allowed a wide latitude or discretion and judgment." Wills sums up the law as under :‑ "The guarantee of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rest upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a. special subject for discriminating and hostile legislation. It does riot take from the states the power to classify either in the adoption of police laws or tax laws or eminent domain laws, but permits to them the exercise of a wide scope of discretion and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarly, not identity of treatment is enough. 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." Mahajan, J., dwelling on this subject observed as under in Suraj Mal Mota & Company v. Visvanatha Sastri and another (A I R 1951 S C 545 at p.552) :‑ "It is well settled that in its application to legal proceedings Article 14 assures to everyone the same rules of evidence and modes of procedure, in other words, the same rule must exist for all in similar circumstances. It is also well settled that this principle does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances. In the same position. The state can by classification determine who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject " It is, thus, clear that Article 5 has to be given a very wide scope, and as my Lord the Chief Justice put it in Jibendra Kishore's case :‑ "It is a fundamental canon of construction that a Constitu tion should receive a liberal interpretation in favour of the citizen." Once it is conceded that Article 5 should not be literally construed and that it should be given a wider scope, then it will not be possible to lay down any hard and fast rule which may have general application. It shall have to be decided on the peculiar circumstances of each case as to how Article 5 should be inter preted and I will not be surprised if in times to come a volume of case law is built up around Article

5. In passing I may mention here that a clause similar to Article 5 has also been incorporated by the United .Nations in its Declaration of Human Rights. It runs thus : "All are equal before the law and are entitled without any discrimination to equal protection of the law:" It, thus, follows that the legislature in the exercise of its law making power is not prevented by Article 5 of the Constitution to classify the people according to the needs and exigencies of the society and as suggested by experience. It can in doing so take into consideration even the degrees of evil. The next question which naturally arises is whether the classification should be left to the arbitrary will of the legislature or there should be some restrictions placed upon it. It must be conceded that Legislature cannot take away from any person or class of persons the fundamental rights ensured by Constitution. Since equality before law and equal protection of laws is also a fundamental right, it follows as a necessary corollary that classification cannot be arbitrary. The legislature must lay down in clear terms the object that it seeks to attain and then classify people on' some real and substantial difference bearing a just and reasonable relation to that object. In other words, there must be a nexus between the basis of classification and the object of the enactment. It is the duty of the Legislature to guard against designed and inten tional hostile treatment or discrimination between single individual or class of individuals. In India, the question attracted the attention of the learned Judges of the Supreme Court for the first time in Charanjit Lal Chowdhury v. The Union of India and others. In. this case, there existed a Company by the name of Sholapur Spinning and Weaving Company Limited with its registered office within the State of Bombay. This Company was closed down by the Directors, but, it appears that the Government of India was anxious that it should continue to function. The Governor General of India, therefore, promulgated an Ordinance which purported to make special provision for the proper management and administration of the Company. This Ordinance was sub sequently replaced by Sholapur Spinning and Weaving Company (Emergency Provisions) Act. Charanjit Lal Chowdhury, who held certain' shares in this Company, challenged the constitutional validity of the Act inter alia on the ground that it offended against the provisions of Article 14 of the Constitution, because it selected one particular Company and its shareholders and had taken away from them the right to manage their own affairs, but the same treatment had not been meted out to all other Companies and shareholders situated in identical manners. Mukherjee, J., while discussing the interpretation of Article 14, observed as under :‑ "It must be admitted that the guarantee against the denial of equal protection of laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circum stances and conditions . . . . . . In other words there should be no discrimination between one person and another if as regards the subject‑matter of the legislation their position is the same. I am unable to accept the argument of Mr. Chari that a legislation relating to one individual or one family or one body corporate would per se violate the guarantee of equal protection rule. There can certainly be a law applying to one person or to one group of persons and it cannot be held to be unconstitu tional if it is not discriminatory in its character. It would be bad law if it arbitrarily selects one individual or a class of individuals, one corporation or class of corporations and visits the penalty upon them which is not imposed upon others guilty of like delinquency. The Legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws and if the law deals alike with all of a certain class, it is normally not obnoxious to the charge of denial of equal protec tion, but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing reasonable and just relation to the things in respect to which the classification is made and classification made without any sub stantial basis should be regarded as invalid." Das, J., at page 65 formulated the law thus :‑ "Equal protection of the law's as observed by Day, J., in Southern Railway Company v. Greane ((1909) 216 U S 400) means subjection to equal laws, applying alike to all in the same situation. The inhibition of the Article that the State shall not deny to any person equality before the law or the equal protection of the laws was designed to protect all persons against legislative discrimina tion amongst equals and to prevent any person or class of persons from being singled out as a special subject for discrimi nating and hostile legislation. It does not, however, mean that every law must have universal application, for all persons are not, by nature, attainment or circumstances, in the same position. The varying needs of different classes of persons often require separate treatment and it is; , therefore, established by judicial decisions that the equal protection clause of the Fourteenth Amendment of the American Constitution does not take away from the State the power, to classify, persons for legislative purposes. This classification may be on different basis. It may be geographical or according to objects or 'occupations or the like. If law deals equally with all of a certain well defined class it is not obnoxious and it is not, open to the charge of a denial of equal protection on the ground that it has no application to other persons, for the class for whom the law, has been made is different from other persons, and therefore, there is no dis crimination amongst equals. It is plain that every classification is in some degree likely to produce some inequality, but mere production of inequality is not by itself enough. The inequality produced in order to encounter the challenge of the Constitu tion, must be actually and palpably unreasonable and arbitrary. Said Day in Southern Railway Company v. Greane :‑ "While reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed ; and the classification cannot be arbitrarily made without any substantial basis. Arbitrary selection, it has been said, cannot be justified by calling it `classification.' Quite conceivable there may be a law relating to single individual if it is made apparent that, on account of some special reasons applicable only to him and inapplicable to anyone else, that single individual is a class by himself. In Middleton v. Taxas Power and Light Company ((1918) 249 U S 152), it was pointed out that there was a strong presumption that a Legislature understood and correctly appreciated the needs of its own people, that its laws were directed to problems made manifest by experience and that the discriminations were based upon adequate grounds. It was also pointed out in that case that the burden was upon him who attacked a law for uncon stitutionality. In Lindsley v. Natural Carbonic Gas Company ((1910) 220 U S 61) it was also said that one who assailed the classification made in a law must carry the burden of showing that it did not rest upon any reasonable basis but was essentially arbitrary. If there is a classification the Court will not hold it invalid merely because the law might have been extended to other persons who in some respects might resemble the class for which the law was made, for the Legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist. If, however, there is, on the face of the statute, no classification at all or none on the basis of any apparent difference specially peculiar to any particular individual or class and not applicable to any other person or class of persons and yet the law hits only the particular individual or class, it is nothing but on attempt to arbitrarily single out an individual or class for discriminating and hostile legislation. The presumption in favour of the Legislature cannot in such a case be legitimately stretched so as to throw the impossible onus on the complainant to prove affirmatively that there are other individuals or class of individuals who also possess the precise amount of the identical qualities which are attributed to him so as to form a class with him. As pointed out by Brewer, J., in the Gulf Colorado and Santa Fe Railway v. W. H. Ellis ((1896) 165 U S 150), while good faith and a knowledge of existing conditions on the part of a Legislature was to be presumed, yet to carry that presumption to the extent of always' holding that there must be some undisclosed and unknown reason for subject ing certain individuals or corporations to hostile and discriminat ing legislation was to make the protecting clause a mere rope of sand, in no manner restraining the State action." Both the learned Judges, it would be seen agreed with regard to the real scope of the equality before law and equal protection of law clause, but in its application to the Act under consideration, they differed. While Mukerjea, J., said that although the Act did not give any reason for the legislation the Ordinance which was a precursor of the Act expressly stated that the legislation was necessary because owing to mismanagement and neglect a situation had arisen in the affairs of the Company which prejudicially affected the production of an essential commodity and caused serious unemployment among a section of the community. Das, J, opined that there was not even a single preamble alleging that the Company was mismanaging at all and that no special reasons existed which made it expedient to enact the law and so the Act on the face does not purport to make any classification at all or to specify any special vice to which this particular Company or its shareholders are subject which cannot be found in other Companies and other shareholders so as to justify any special enactment. In the opinion of the learned Judge the Act was an arbitrary selection of this particular Company and its shareholders for discriminating and hostile treatment and read by itself was palpable infringement of Article 14 of the Constitution. Referring to the preamble of the Ordinance on which Mukherjea, J. had based his judgment Das, J., observed that mismanagement and neglect in conducting the affairs of the Company can never be a criterion or basis of classification for legislative purposes. Kennia, C. J., and Fatal Ali, J., agreed with Mukherjea, J., while Patanjali Sastri. J., agreed with Das, J., Fazal Ali, J., opined that Article 14 of the Constitution laid down an important and fundamental right which should be closely and vigilantly guarded, but in construing it, the Court should not adopt a doctrinaire approach which might choke all beneficial legislation. The law laid down in this authority with regard to the interpretation of Article 14 of the Indian Constitution was, thus, summarized by Fazal Ali, J., the State of Bombay v. F. N. Balsara (A I R 1951 S C 318 at p. 326) :‑ "(1) The presumption is always in favour of the consti tutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. (2) The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class. (3) The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment. ' (4) The principle does not take away from., the State the power of classifying persons for legitimate purposes. (5) Every classification is in some degree likely to produce some inequality and mere production of inequality is not enough. (6) If a law deals equally with members of a well‑defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no appli cation to other persons.

7. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any, substantial basis." These principles have been consistently followed by the Supreme Court of India in all its subsequent decisions. For example The State of West Bengal v. Anwar Ali Sarkar (AIR 1952 S C75) ; Kathi Rening Rawat. v. The State of Saurashtra (AIR 1952 S C 123) ; Gurbaksh Singh v. The State of Bombay (AIR 1952 S C 221) ; Lachmandas Kewalram and another v. The State of Bombay (AIR 1952 S C 235) ; Shamarao Parulekar and others v. The District Magistrate Thana (A I R 1952 S C 324) ; Amirunnisa Begam v. Mahboob Begum (A I R 1953 S C 91) ; Ramaparshad Narayan Sahi and another v. The State of Bihar (AIR 1953 S C 215) ; D. B. Joshi v. The State of Madhya Bharat (AIR 1955 S C 334) ; Bidi Supply Co. v. The Union of India (AIR 1956 S C 479) and Ram Chandra Palai v. The State of Orisa (A I R 1956 S C 298). Practically, the same view has been adopted by our Supreme Court in Jibendra Kishore's case referred to above and the famous Foreign Exchange case, Waris Meah v. The State (P L D 1957 S C (Pak.) 157). Let us now examine subsections (3) and (4) of section 1 of the Regulation in the light of and as guided by the principles enunciated 'above. Both these subsections by themselves do not lay down any standard on which the classifications territorial or racial as the learned counsel calls it, are based. For this purpose we shall have to look at the preamble which is to the following effect :‑ , "Whereas it is expedient further to provide for the suppression of crime. in certain Frontier Districts, it is hereby enacted as follows". Now, the general rule is that the express provision of an enactment, if it is clear and unambiguous, cannot be curtailed or extended with the aid of the preamble, but when the object or meaning of certain provision is not clear just as is the case E here, then it is perfectly legitimate to have a recourse to the preamble to explain it. If any authority is needed for this well settled principle of law, then I may be permitted to quote Pappat Lal Shah v. The State of Madras (A I R 1953 S C 274) ; Negeowara Rao v. The State of Madras (A I R 1954 Mad. 643) and A. Thangal Kunju Musaliar v. M. Venkatabhalram Pota (A I R 1956 S C 246). Preamble of the Regulation unmistakably enacts that Peshawar, Kohat, Hazara, Bannu, Dera Ismail Khan and Mardan Districts were chosen for enacting another law in addition to the existing law, in order to suppress the crime there. For the reasons already mentioned, it must be presumed that conditions existed in these districts which made it imperative for the Legislature to enact the impugned law. There is, thus. rational and tangible bass of this classification because the suppression of crime is the foremost duty of a Police State. I see no force in the argument that as the law does not apply to other parts of Pakistan, it must for that reason be struck out H as discriminatory and void, because a law may be needed in one part of the same country and not in the other. It will be absurd to say that though a particular law is not needed in the other part, yet in order to be valid, it must also apply to it. If the argument of the learned counsel is accepted, then numerous laws which are exclusively applicable to East Pakistan and different provinces which were subsequently merged in one province of West Pakistan would be rendered bad. Surely, the circumstances which prevail in the aforementioned districts do not exist in other parts of Pakistan. They differ in marked degrees in climate, and their people in habits, custom and tradition, In my view, therefore, territorial or geographical classification is a good classification, because there is a nexus between the classification and the object of the statute. The authorities on this point seem to be unanimous. I have elsewhere quoted Professor Wills saying that it does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. Das, J. in Charanjit Lal's case held that the classification may be on different basis geographically or according to the objects or occupations or the like. The same view was expressed in Bhudon Chowdhry v. The State of Bihar (AIR1956SC191) ; as well as Parshotam Gobind Ji v. Shri B. M. Desai (AIR 1956SC20) ; Ram Chandro Palai v. The State of Orissa (A I R 1156 S C 298) and Bidi Supply Company's case reported as (AIR 1956 S C 479). Subsection (4) of section 1 of the Regulation is the next provision which requires close examination. The learned counsel for the petitioners has urged that by authorising the Government to apply the sections which are not of general application particularly to Pathans and Biluchis, the Legislature has introduced an invidious discrimination. As has been observed above, this argument is based on the ground that Biluchis and Pathans are two races, and it has been held by the Supreme Court of Pakistan in Jubendra Kishore's case that a classification which proceeds on differences, colour, or religion will certainly be rejected by the Courts. So far as Biluchis are concerned, it is not necessary to discuss them in this judgment. The Karachi Bench of the West Pakistan High Court stands in a better position to discuss that class of people than this Bench. In fact, this question did come up before them in Khair Muhammad Khan, Fazal Mahmud, and Abdul Haq v. The State reported in (P L D 1957 (W P) Kar. 709). Qadiruddin, J. who delivered the judgment, discussed this question at some length at page

733. The learned Judge seems to have taken sub section (4) along with the notification applying the sections other than those which were of general application to all persons born or ordinarily resident in any local area to which the said Regulation for the time being extends, and has held that since the Regulation has been applied to all persons, therefore, it was not correct to say that any classification on racial basis and actually been made in the administration of justice on the Criminal side. (This Notification has been reproduced in extenso as an appendix to this judgment and is the same which was issued in Baluchistan.) His. Lordship justified the non‑inclusion of European British subjects in the Notification on the ground that European British subjects kept themselves aloof from local influence, contacts, and associations and were not the persons for whom an additional law to suppress the crime was needed. The learned Judge, however, held that the classification of the population on racial basis, viz. the Biluchis and Pathans offends against Article 5 of the Constitution. It was, however, admitted that the object of the Legislature by using these two terms might be to refer to certain sections of the population without thinking of the races to which they belonged. It was conceded that the words certain tributaries of the population were aimed to be described with the help of two short words. But, in spite of that, they struck out the words "Biluchs and Pathans" for the reason that the object of brevity of description cannot be allowed to be achieved by forgetting the tributaries and forcussing attention on Pathans and Biluchs as such about whom it cannot be said that they all reside the territory, not that they are the only residents of the territory. Their Lordships assumed for the purposes of that case that Pathan is a race. In my view, Pathan is the name given to the original resident of a portion of Afghanistan, the defunct North West Frontier Province and Baluchistan. It is no more a race than a Punjabi, a Sindi or ‑a Bengali is. When racial experts talk of races they talk of Aryans, Mangolians, Negroes, Malayas, Semetics, Harmites, American Indians but certainly not of Pathans. They have been dis tinguished by being called as Pathans from the people of the other parts of the pre‑partitioned India who migrated to this i tract of land and settled down there permanently. Some of them have got so much mixed up with the original residents that it is impossible to say whether they are Pathans or not. Immediately before the partition of India, in fact, even the non‑Muslims. claimed that they being the residents of this tract were also Pathans. Abdul Ghaffar Khan, the leader of the Red Shirts in the North West Frontier Province and now the leader. of the National Awami Party, has also stated time and n again in his speeches delivered to the people, that all persons, ` irrespective of what they were before living in the six districts of the former North West Frontier Province and Baluchistan, a are entitled to call themselves as Pathans. It is a question of common knowledge that Pathan and Afghan is the name of the s same class of people. There are many legendary stories with '` regard to the origin of the word "Afghan". They themselves B claim that they were Bani Israils, but then so were the jews and if for that reason the Jews cannot belong to Pathan race how can they. There is a legend that the person from whom the Afghans claim their ancestry when he was about to be born, his mother was crying and wailing which mean "Fughan" in Persian. This word "Fughan" then turned into Afghan. According to another legend after the child was born, the mother cried "Afghana Afghana", which words have, been taken to mean that she had become free. It is on the basis of this legend that the word "Afghan" is taken to mean free people. There is another story that these people are the descendants of one Afghan, who was the son of Jermia, who in this turn was the son of a prophet by the name of "Jalut". There is yet another myth that they are the descendants of one "Aughan" who was a celebrated wrestler of King Faridoon. This word "Aughan" then turned into the word "Afghan". According to the Greek historians, however, the tract which is inhabited by the Pathans, was known as "Ghandara" as well as "Pukhtika" and the people living in this tract were called Pukhtoons.' Some of the writers have opined that the word "Ghandara" in Sanskrit pronounced as "Aswaka", which means the best rider. "Aswaka" in the times to come was turned in "Asad", which in its turn came to be pronounced as "Asakani" and then "Aughan" and then "Afghan". This `is the jargon of the people who claim to know something about the origin of this class of people. Looking at different"'stories, I am led to the conclusion that it is absolutely wrong to ''say ‑ that Pathan is arace There is no historical proof that all Pathans are descenaaiits of one. person, and are, , therefore. a race. This class of peopic~, as is well known, consists;. of different families. Some of them are Yusafzais, Khattaks, ,Afridis, Mohmands, Durranis. Sayeds, Akhunkhels, Mangals, Aurakzais; Utmankhets, Kakarzats. Isazais, Ilyaszais, Malizais, and Akozais. Even the M ughais as well as the Sayeds living in this tract call themselves Pathans although the former were TuiICS' and the latter had migrated to India from Arabia. Even the ~ Khiljis, who at one time rued India, were known to be Pathans, although they had come from Turkistan and had settled down in Afghanistan much bef ors they had invaded India. People who migrated from Kashmir and settled down in the six district in question, also call themselves Pathans. If Pathans, therefore, are taken as the inhabitants of a specified part of West Pakistan and for" that reason a distinct class of people, then the classification which, .is' purely zonal cannot offend against .Article 5 of the Constituton. The question as to why Pathans were specially 'ihentioted 'in subsection (4) will take us back to the time when the,', ~ro'rttier Crimes Regulation immediately after the `British conquered the Pathan land, was for the first time enacted. The condition of this land was such that the produce was very scanty and as the Pathans were growing in number, therefore, they had no other alternative but to indulge in highway robberies and in black mailing the rich cities of the North West Punjab. They then had their own peculiar features; habits, customs and special rules to decide their disputes, both of civil and criminal nature. These rules differed with different clans and villages. Frontier Crimes Regulation and other penal enactments of special kind which are in force in the North West Frontier Province were enacted to meet Pathans peculiar features. These laws have been the subject matter of agitations since a very long time. As a result of these agitations, a Committee was constituted by the Government of India on the 21st of May 1931, consisting, of nine members, with Hon'ble Mr. Justice Niamatullah Khan as its President. The Committee was asked to examine the above laws and its relation to conditions prevailing in the North‑West Frontier Province. They were also asked to investigate the administration of all those regulations in the settled districts of the North‑West Frontier Province, and in particular, the administration of the Frontier Crimes Regulation of 1901, and to make recommen dations as to how far it was expedient to retain, modify, or repeal the provisions of the five Regulations with due regard to the public of the North‑West Frontier Province and India as a whole. This Committee examined numerous witnesses, both officials and non‑officials as well as official records and submitted their report on the 27th of August 1931. They made certain recommendations which were, however, not implemented and which will be referred to in this judgment a little later. At this stage, I am only concerned with the history of the Frontier Crimes Regulation as to why was it enacted, and this has been given in the report in some detail. The six districts in question were annexed by the British Government sometime in 1848. The ordinary civil and criminal law then in force in British India were applied to them and they F remained so applied till 1871, when the first Frontier Crimes Regulation came into force. There is no record to show as to what led the authorities to introduce this special provision of law except the Notes on Crimes and Criminals on the Peshawar Frontier by Elsmie, who remarked that at the time of Annexation of Punjab in the year 1849‑50, murders of crimes accompanied by murder, were committed at the rate of one per diem in the Peshawar District. Subsequently, with the exception of one or two years such crimes were on the increase. The first Regulation contained about a dozen simple rules, authorising the Deputy Commissioner, subject to the sanction of the Commissioner, to detain all or any members of the Frontier tribe acting in a hostile or unfriendly manner, restricting the erection of hamlet, village, or tower or walled enclosure without the sanction of the Commis sioner, imposition of fine on village communities in certain circumstances by the Deputy Commissioner with the concurrence of the Commissioner, authorising the Deputy Commissioner to require a certain person who is known or believed to have a blood feud likely to lead to bloodshed beyond the limits of a certain territory, empowering the Government to direct the removal of any village on the immediate border to another site when expedient on Military grounds, delegation of power to the Deputy Commissioner to refer the case of a person accused of murder or other heinous offence when sufficient proof was not forthcoming for judicial conviction, to the decision of "Council of Elders" convened according to the Pathan or Biluch usage, the repeal of section 497, I. P. C. and the amendment of section 209 of Act VIII of 1869 and the Amendment of Police Act V of 1861. In spite of this Regulation the commission of murders and other heinous offences was on the increase. This Regulation was re‑enacted in 1873 and again in 1876 with very minor amend ments. The figures of crime in the year that followed again showed an enormous increase. The Lieutenant‑Governor of Punjab proposed 4 new Frontier Crimes Regulation and in forwarding the draft to the Government of India, it was observed as under :‑ "It is with regret that the Lieutenant‑Governor records that the statistics of crime for the Peshawar District during 1885 show a still further increase in the number of murders, which reached 101, or a higher figure than as yet been recorded, except in the years 1851 and 1873. At the present time the Deputy Commissioner of Peshawar computes that there are as many as two thousand murderers at large in the Peshawar Dis trict; and this result is not to be wondered at when the same officer states that only one out of every six murderers is convict ed. The causes which have led to this stage of things are to be found mainly in the state of society which exists on the northern frontier. Setting aside the case of murders, the criminal administration is steadily improving, and the working of the police affords little ground for adverse criticism. But according to the Pathan Code of Honour, murder under certain conditions is not a crime but an obligation. The popular feeling is either on the side of the murderer or is apathetic. Thus evidence sufficient to procure conviction under the ordinary procedure is rarely forthcoming, and when it exists is generally mixed with wholesale perjury and the implication of innocent persons, making it impossible for the Courts to convict the criminal. These conditions, which have been detailed at greater length in paragraphs 6‑8 of the letter above quoted (No. 176, dated 15th February, 1886; to the Officiating Commissioner of the Peshawar Division); were fully taken into consideration when the Frontier Crimes Regulations of 1872, 1873 and 1876 were passed. So, far as the provisions of these .Regulations have enabled the local officers to deal a somewhat more rough and ready kind of justice, in cases of heinous crime they have been productive of good results. Trial by Jirga has often led to the conviction of persons regarding whose criminality there was little doubt, but against whom evidence would not have been forthcoming in the ordinary course. No serious cases of abuse of this jurisdiction have been, brought to light ; and the unanimous opinion of the local officers is that it should be further extended". As a result of this recommendation the North‑West Frontier Crimes Regulation of 1887 received the assent of the Governor General. By 1900 it was realised that figures of violent crime in general and of murder in particular had maintained a steady upward tendency and by 1891 it reached the highest limit ever recorded before. Therefore, a legislation to thwart this tendency was proposed. The Lieutenant‑Governor of Punjab of which the six districts then formed part, again recommended as under :‑ "With reference to the view that the Jirga system cannot be trusted a great deal might, be written. The system is admittedly a pis aller. It has been related because of the impossibility of securing convictions in a certain class of cases by the judicial Courts, the discovery of such cases being of supreme impor tance to the administration and being ex‑hypothesi possible by means of the Jirga system. Apart from the safeguards which have now been provided in the revised draft, there is one permanent safeguard, vie. that the Deputy Commissioner is not obliged to convict. True it is difficult for him to go behind the finding, but he may reject it, and ought to do so, if he is not satisfied that it is well founded. This system has, according to general opinion, been of great value, though it has not been without its inherent defects. No one suggests that it should be abolished or ventures to substitute an alternative. Its first introduction was followed by a general decrease in crime. Since 1893 crime has increased, and some are doubtful whether this may in part be due to the Jirga system being dis credited. Sir Mackworth Young finds no warrant for this. Violent crime has increased in other parts of the Province, and the frontier disturbances of 1897 were found to produce a recrudescence of heinous cases. On the whole the experiment must be pronounced a success. His Honour goes further and says that it is a clearly established success. Numbers of heinous criminals have had punishment dealt out to them who would otherwise have gone free, The conviction of the innocent may happen ; it happens in the judicial Courts ; but the opinions reveal no sense of a public wrong due to the system ; some officers go so far as to say that they believe failures of justice under the system rarely, happen". It was under these circum stances that Frontier Crimes Regulation of 1901 which is now impugned came into force. It will thus be clear that the authorities in 1901 considered that the ordinary civil ands criminal law was not sufficient to meet the situation in the six districts under consideration, and therefore, in order to provide' for the suppression of crime in these districts it was expedient to enact an additional law. A State is essentially a Law and Order State as well as a Welfare State. If it finds that for the welfare of a certain class of people a certain law must be brought into operation it is bound to take step to enact such law. Similarly, it is its duty to pass laws to suppress the increasing tempo of a certain type of crime prevalent in a specified class of people. This classification may be made on territorial, geographical, social, economic or other reasonable basis. It will be wrong to say that while the State has the power to classify people in the exercise of its function as a welfare State, it has no such power when the law is needed to maintain law and order. The Legislature must of necessity make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies and it must for that purpose possess large powers of distinguishing and classifying persons of things to be subjected to such laws. Here I may quote the observations made by S. R. Das, J. in State of Bengal v. Anwar Ali Sarkar's case (A I R 1952 S C 75 at 96 paragraph 63) :‑ "On the other hand, it is easy to visualise a situation when certain offences, e.g. theft in a dwelling house, by reason of the frequency of their perpetration or other attending circumstances may legitimately call for a speedier trial and swift retribution by way of punishment to check the commission of such offences. Are we not familiar with gruesome crimes of murder, arson, loot, and rape committed on a large scale during communal riots in particular localities and are they not really different from a case of a stray murder, arson, loot or rape in another district which may not be affected by any communal upheaval? Do not the existence of the communal riot and the concomitant crimes committed on a large scale call for prompt and speedier trial in the very interest and safety of the community? May not political murders or crimes against the State or a class of the community, e.g. women assume such proportions as would be sufficient to constitute them into a special class of offences requiring special treatment? Do not these special circumstances add a peculiar quality to these offences or classes of offences or classes of cases which distinguish them from stray cases of similar crimes and is it not reasonable and even necessary to arm the State with power to classify them into a separate group and deal with them promptly? I have no doubt in my mind that the surrounding circumstances and special features I have mentioned above will furnish a very cogent and reasonable basis of classification, for it is obvious that they do clearly distinguish these offences from similar or even same species of offences committed elsewhere and under ordinary circumstances". In this authority it will be noticed that the law has been discussed so exhaustively from different points of view by all the five Judges who formed the Bench that no room is left to add anything or the subject under consideration. In the State of Punjab v. Ajaib Singh reported in (AIR 1953 S C 10) it was held that "abducted persons" constitute a well‑defined class for the purpose of legislation. The same view was taken in Ram Parshad Narain Sethi v. The State of Bihar (AIR 1953 S C 215). In Suraj Mal Mola's case (A I R 1954 S C 548) Mahajan. C. J. held that the State can, by classi fication determine as to who should be regarded as a .class for the purposes of legislation and in relation to a law enacted on a particular subject If we look at the Frontier Crimes Regulation, on the basis of the law enunciated above, then this Regulation was framed because of the criminal trend of mind of the Pathans and other people living in the relevant districts. This was in a way also accepted by Kayani, J. in Abdul Akbar Khan v. D. C., Peshawar (P L D 1957 Pesh. 100 at p. 107) when His Lordship remarked at page 107 :‑ "It may be that in 1901 the Pathans and Biluchs were not sufficiently advanced to be able to avail of the ordinary law and that it appeared simpler in suitable cases to refer their disputes to their own Elders, who would naturally apply their own custom or the Muslim Law to it, and if the Deputy Commissioner found it to be against good conscience, he would not accept the decision". The learned Judge annulled subsection (4) of, section 1 qua the Pathans and Biluchis on the ground that the "situation had radically altered". The question is, is it within the proving of the Court to take into consideration the altered situation. In my view, the Legislature alone is entitled to perish the law if the reason for the law has perished. I am quite conscious of the fact that I was a party to the aforementioned authority, but on second thought, with all respect, I am constrained to differ, because, in my view, Pathan is a well‑defined class, and if it is found that a special law in order to maintain the law and order or for their welfare is necessary, the Legislature is perfectly competent to do so. There is an obvious nexus or relation between the purpose of the law and the Pathan as a distinct class. Ex facie therefore, subsection (4) of section 1 of the Regulation is not discriminatory and is not hit by Article 5 of the Constitution. It, therefore, rests upon the person who assails this provision of law to prove that the Regulation in his particular case has been applied in a dis criminatory manner, and if that is established then naturally the Courts would step in and strike out the discrimination. Be that as it may, the Provincial Government in the exercise of the powers conferred upon it by subsection (4) has not applied the Regulation only to Pathans and Biluchs but against all persons enumerated in the Notification reproduced in appendix. Therefore, even if there was a discrimination at the time of the passing of the Regulation, it has disappeared by the aforemen tioned notification. The case, in my view on principles, is fully covered by Jubendra Kishore's case. In this case, subsection (1) of section 3 of the East Bengal State Acquisition and Tenancy Act XXVIII of 1951 was assailed on the ground that it gave an arbitrary power to the Government to acquire by notification in the official gazette with effect from such date as was specified in the notification, all interests of such of the rent receivers as the Government selected in respect of estates, taluks, tenures, holdings or tenancies in any district or part of a district or local area. Their Lordships of the 'Supreme Court of Pakistan, holding this subsection as valid, took into consideration the different notifica tions issued by the Provincial Government, and came to the conclusion that the object of the Act was to eliminate all rents receivers interest by acquiring their land and that is exactly what the Provincial Government has done. This Their Lordships held knowing that the Government could withdraw the notification at any time. In the present case too, the object of the Act was to suppress the crime in the aforementioned six districts. All that it has done is that it has authorised the Government to exempt any local area from the operation of all or any of its provisions if it considered that it was no more necessary to continue this law in those areas. Similarly, in order to achieve the said object, it could apply it against the Pathans and Biluchis and such other classes of people as the exigencies of the case required and discontinue its application on the same consideration. The conferment of a discretion of this kind on the Government can certainly not be styled as discriminatory, because‑every discretionary power is not necessarily discriminatory. The delegation of power by the Legislature to the Government to determine the facts upon which a complete legislative enactment was to go into operation is a natural incident of assigning work to the Government which is best equipped to execute the assign ment. The condition attached to it that the delegation must proceed on some adequate standard laid down in the enactment itself and not left to the subjective consideration of the Government is fully satisfied in this Regulation. It has laid down the policy, namely, to suppress the crime and since it was not possible to state precisely and completely as to how long will it take to eradicate crime from the named districts or parts thereof, nor was it possible to specify the groups of people which needed this Regulation and the time for which they needed it, it was left 'to the discretion of the Government to make a selective application or withdrawal of it according to the prevailing conditions. It would certainly have been very difficult if the Legislature had left it to the Government to run to it to amend the Regulation every time that it considered that a certain part of the six districts was free from crime or certain class of people needed it no more. On this point, I may with advantage quote Fazal Ali. J. in Special Reference No. 1 of 1951 reported in A I R 1951 S C page 332 at page

355. His Lordship, while delivering the judgment of the majority of the Judges, arrived at the following conclusion after exhaustive study of the law :‑ "(1) The Legislature must normally discharge its primary legislative function itself and not through others. (2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation. (3) It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency acts as a subordinate authority and does not become a parallel legislature. (4) The doctrine of separation of powers and the judicial interpretation it has received in America, ever since the American Constitution was framed, enables the American Courts to check undue and excessive delegation but the Courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which dele gation amounts to "abdication and self‑effacement." Two Judges agreed with Fazal Ali, J. in his conclusions while Kania , C. J. and Mahajan, J. disagreed with him. I find myself in full agreement with the observations made by Fazal Ali, J. and the majority view. In Biswambhar Singh and others v. The State of Orissa (A I R 1954 S C 139) Das, J. delivering the judgment on behalf of the majority of the Judges, held at page 144 :‑ "The long title of the Act and the two preambles which have been quoted above clearly indicate that the object and purpose of the Act is to abolish all the rights, title and interest in land of Intermediaries by whatever name known. This is clear enunciation of the policy which is sought to be implemented by the operative provisions of the Act. Whatever discretion has been vested in the State Government under section 3 or section 4 must be exercised in the light of this policy, and, therefore, it cannot be said to be an absolute or unfettered discretion, for sooner or later "all" estates must perforce be abolished. From the very nature of things a certain amount of discretionary latitude had to be given to State Government". In Kishan Singh and others v. The State of Rajasthan reported in (A I R 195 5 S C 795) it was held "that a classification may properly be made on territorial basis if that is germane to the purposes of the enact ment. Having regard to the fact that the conditions of tenants vary from locality to locality, a tenancy legislation, such as sections 81 to 86 of the said Act, restricted to a portion of the State, cannot be held on this ground alone to contravene Art. 14 of the Constitution". The principles upheld in the above authorities govern the present case, and the discretion given to the local Government both under subsection (3) and subsection (4) cannot in my view be challenged on the ground that they invest the Government with any arbitrary power or are discriminatory in nature. No objection has been taken to the notification by the learned counsel for the petitioners, but in the Karachi Authority referred to above, it has been held that the notification was bad in so far as it applied to the persons born in the districts to which the Regulation applied. Their Lordships have given two grounds for holding this view, namely, that it is not logical and also because it is overlapping. Their Lordships have held that it is overlapping because those to whom the qualification of residence applies for purposes of the law included all these who were born in the locality and formed a section of the population. With all respect I have not been able to understand how did the residence and the birth overlap each other. There may be persons who arc born in these districts, but are not the ordinary residents of them and vice versa the persons residents of these districts may not have all been horn there. Residence and place of birth are two distinct conceptions with different connotations both in lade and in fact. It is illogical according to their Lordships because it seeks to apply the special provisions of law to those who may have after birth never lived in the localities and never had the chance of imbibing the characteristics of the population. It is a matter of common knowledge that many persons who were born in these districts have settled down in different parts of Pakistan and India and are carrying on business there. It is also common knowledge that these people have not severed their relations with these districts for they have their numerous relation living therein to whom they pay frequent visits. They retain the main characteristics of the class of people to whom they belong and instances are not lacking where they have actually come to their home towns to commit murders and heinous crimes in prosecution of their blood feuds. The Pakistan Constitution unlike the Indian Constitution where it prohibits the discrimination on the ground of the place of birth or face has stated so distinctly. For example, in Article 13 no citizen can be denied admission to any educational institution receiving aid from public revenue on the ground of race, religion, caste or place of birth. Similarly, in respect of access to places of public entertainment or resort such discrimination is hit by Article

14. Under Article 17, no citizen otherwise qualified for admission in the service of Pakistan shall be discriminated in respect of any such appointment on the ground of only race, religion, caste, sex, residence or place of birth. On the other hand, under Article 15 of the Indian Constitution, the State generally cannot discriminate against any citizen on the ground only of religion, race, caste, sex, place of birth or anyone of them. There is no such provision in our Constitution. On the other hand, Article 26 of our Constitution only discouraged racial prejudice among the citizens. It does not prohibit it. ' There seems to be considerable wisdom in it. I have already expressed my opinion that Pathan is not a race. But, if it is a race, even then, I think the Legislature has got the jurisdiction to frame laws for its benefits as well as to curb its subversive activities in order to maintain law and order in the country. Article 5 is very wide in its terms, and it should, in my opinion, be construed liberally in favour of the subject. It follows from the above discussion that the notification cannot be assailed successfully on any reasonable ground, and so, o section 1 of the Regulation is not ex facie discriminatory. Sections 2 to 7 cannot be said to be hit by any of the provisions of the Constitution. Sections 8 to 10 have been the subject matter of Abdul Akbar Khan's case and need not be re‑examined again. It then takes me straight to section 11, which is the most controversial section in the Regulation. Section 11 confers power upon the Commissioners and Deputy Commissioners to snatch away the jurisdiction of the Courts of Session and Magistrates of First, Second and Third class to try cases ordinarily triable by them under the Code of Criminal Procedure on the ground of inexpediency, and thus, institutes a parallel system of special tribunals to try such cases. The word "expediency" has been left undefined. There is no definite objective test laid down in the Regulation to determine it. I have seriously considered to call the preamble of the Regulation in aid for the purpose of removing the defect in interpreting this word, but I find that the limitations contained therein, if they are read into this section, will have the effect of delimiting the plain and natural meaning of section 11 which is quite contrary to the cardinal principle of Interpretation of Statutes that it is not open to a Court of law to refuse to give effect to a plain and statutory provision on the ground that it is beyond the scope and object of the Act as declared in the preamble. Section 11 does not repeat the phraseology used in. the preamble. But, even if the preamble is called to assist us, still, in my view, it will make no material difference, because suppression of crime on the ground of inexpediency of trial by the ordinary Courts in individual cases cannot be said for that reason to have been based on any characteristics which are peculiar to persons or classes or to the area in which the offences are committed which are to be subjected to the special procedure prescribed by the Regulation. The Commissioners and Deputy Commissioners are quite at liberty to exercise power in a manner involving discrimination acknowledging neither guidance nor restraint. Action or non‑action on the part of the Commissioner or Deputy Commissioner may proceed from enmity, partisan zeal, favourtism and political considerations which are easy to conceal but difficult to be detected. The Regulation lays down no machinery by which the impartial exclusion of power under this section can be secured and partiality and oppression prevented. It has been left to the uncontrolled and unfettered will of the Commissioner or the Deputy Commissioner to select any person or persons, or even anyone of several persons arrayed on the same side and refer the question of their guilt or innocence in relation to the offence alleged to have been committed by all of them to the decision of the "Council of Elders" and leave the case of the other persons to be tried by the procedure laid down in the Criminal P. C. No attempt has been made in the Regulation to guide the Commissioner or the Deputy Commissioner to select the individuals or group of individuals with reference to any differentiating attributes peculiar to that individual or group of individuals and not possessed by other similarly placed. Uncon trolled power of discrimination in matters which seriously affect the lives And properties of the citizens cannot be left to executive or quasi‑executive bodies even if they exercise quasi‑judicial functions, because such power is not even possessed by the Supreme Legislature of the country, viz., the Parliament. Power, however, must be conceded to the Legislature to set up special tribunals and courts with special procedure to meet the special situation according to the needs of different parts of its territory and people, because it is an essential part of its police power, but then the Legislature must in clear words enact the principle and policy and lay down the standard of control over the discretion which it proposes to confer on the executive authorities. An elaborate machinery has been set up In the Criminal and Civil P. C., for the trial of cases which affect the lives and properties of the citizens of Pakistan. There are then numerous other enactments which lay down the rules for the guidance of the authorities, judicial, quasi‑judicial and executive for the exercise of their respective powers and jurisdictions. Section 11 of the Regulation on the other hand, dispenses with the normal procedure and lays down no procedure of its own. It also does not prescribe any rule for the guidance of the commission, the Deputy Commissioners and the Council of Elders in the exercise of their powers which are calculated to deprive the citizens of the six districts in question of their liberties and properties. The only procedure which the Council of Elders has to follow is to hear the accused and conduct an inquiry as may be necessary. It appears that it is left to the subjective will of the Council of Elders to decide as to what inquiry is necessary. The ordinary rules of evidence laid down in the Evidence Act do not govern the proceedings before the Council of Elders. The Members thereof may question one person in the absence of the accused and on his answer alone may consider that the necessary inquiry has been made and convict the accused thereupon. There is also nothing in the Regulation to show that the Council of Elders has to record any evidence or do so in the presence of the accused. They are also not bound to afford an opportunity to the accused to cross‑examine the witnesses on the basis of whose statements he is liable to lose his liberty in some cases even up to fourteen long years. This section, as I have said in the earlier part of this judgment, has provoked considerable agitations in the six districts to which it is applied since the day of its very inception. The authorities from time to time have been making inquiries into the matter, but every time the Head of these districts was of the opinion that section 11, in view of the circumstances prevailing in them, must continue. At one time, probably before the Regulation as at present exists, was enforced, Mr. Justice Plowden of the Punjab Chief Court questioned it. I may here reproduce the remarks made by Mr. Justice Plowden :‑ "The general criticism to which the report and recommend ations of the Committee strike me as open is that they seem to assume :‑ (1) That new methods based on new principles are necessary, without demonstrating that methods based upon and involving merely new applications of recognized principles must prove inadequate; and (2) That the criminal population of the Frontier is a class sui generis differing largely in essential points from the same class elsewhere. As to the first matter, it is enough to observe that the proposals submitted to the Government include a new and rather startling jurisdiction by which to be a `reputed assassin' is constituted a highly penal offence, and the offender is liable to conviction by a Deputy Commissioner without being made aware what the evidence against him is, and by whom it is given, and, as I understand, without appeal, but subject only to confirmation by the Commissioner." "It is also proposed to extend very largely the scope of the jurisdiction of Jirgas, and pro tanto to exclude the jurisdiction of the ordinary courts. This change is introduced by transferring to .the Deputy Commissioner the power of punishment which is not entrusted to the Jirga, and to make the finding of a Jirga the foundation of sentences by the Deputy Commis sioner, which may extend to seven years' imprisonment, instead of a fine, as at present these sentences also not being open to appeal in the ordinary course, though liable to be revised by the Commissioner." "I will deal briefly with these proposals presently, but I would first point out, with reference to the second remark above made, that unscrupulous witnesses, and false evidence for the prosecu tion as well as the defence, are daily occurrences in criminal trials throughout the Province; and that the population at large, elsewhere than on the Frontier, is extremely apathetic as to endeavouring to aid the executive authorities in bringing offenders to justice. In two respects, however, the Pathan criminal surpasses criminals of the ordinary type. 'He is more prone to take human life, and he vary rarely confesses either out of court or in court." Dealing with the proposed provisions regarding "reputed assassins" he made some observations which may be applicable to other cases as well :‑ "I greatly doubt the wisdom of the concurrent jurisdiction of the Deputy Commissioner and of the Jirga . over cases of this kind. Apart from any personal leanings, due to the habits of official judicial life, in favour of inquiry in presence of an accused person, I share with probably most Englishmen a National prejudice against secret and underhand dealings, especially when a Judge is party to the transaction. The case is aggravated when the other party to such dealing is one of a false, unscrupulous, treacherous and vindictive class like the typical Pathan. As soon as it is known that there are two tribunals before which a man can be charged as a reputed assessing, with the same sentence on conviction; one of which, a single European officer, will take evidence secretly, while the other consists of several native members, who take evidence openly before the accused, it is most likely that informers will select the former tribunal, and with‑hold information from the latter. This will be, especially so in cases of false witnesses, in which the chances of detection of falsehood will be minimised. Given to Jirga tribunals only, every honest informer could contrive to convey his information secretly to some member of the Jirga, a body not restrained from being influenced by information irregularly derived, and the best of them would face the Jirga openly. The less encouragement that Is given to false informers the better, I venture to think, for the community and for the Government." Subsequently, the Committee already referred to headed by Mr. Justice Niamatullah went into section 1I and the rest of the Frontier Crimes Regulation very exhaustively. In‑a‑lengthy report, which covered eighty‑seven pages, they recommended that the dual system should be discontinued. The Deputy Commissioner should have no power to exclude the jurisdiction of a Magistrate or a Sessions Judge by making a reference to the Council of Elders sitting apart from the Judge. They proposed that the tribunal should consist of Judge and Jirga acting as jury, sitting together, and empowered to pass any sentence provided for by the I. P. C., including sentence of death. In their view; the Judge should be a Sessions Judge and not the Deputy Commissioner. The Jirga List should be made a List of Jurors after careful revision. Parties should be allowed to be represented by legal practitioners. The provisions of the Code of Criminal Procedure before a Sessions Judge should apply. This mode of trial should be limited to cases of murder, culpable homicide, attempt to commit murder, abduction, kidnapping, dacoity and causing disappearance of evidence. They recommended the retention of section 30, but said that it should be confined to Muslims only. They proposed that sections 40 to 47 should be repealed. Their recommendations with regard to the other sections are not relevant to the cases now under consideration. After the above Report, so long as the British Government remained in power in this part of the country, section 11 was very sparingly used, but later on, when the Congress Government, headed by Dr. Khan Sahib, came into power, the Frontier Crimes Regulation generally, and section 11 particularly, was used most profusely. Since then, up to the present moment, section 11 has been brought into use, both with a view to suppress the crime as well as on political considerations. I need not refer to different judgments of the Judicial Commissioner's Court, but in order to appreciate the true meaning of section 11, I must refer to the judgment of Cornelius J. in Samandur v. Crown reported in (P L D 1954 F C page 228 at p.236). His Lordship remarked as under :‑ "The form of procedure beaing thus left to be determined arbitrarily by the Jirga, it seems clear enough that the intention of the Regulation also is that none of the recognized rules of evidence should be binding upon the Jirga. The main principles which underlie the law of evidence are exclusion of irrelevant matter and of hearsay, coupled with insistence upon the produc tion of the best evidence, and upon a strict application of these rules depends the safe administration of justice. Administrative agencies are very frequently saved from the application of these rules by statute or otherwise and that is certainly the case with respect to Jirga. In these very cases, the Jirga has declared that it held "open and strict enquiries", which suggests investigations of a nature entirely different from those which are permissible in a Court of law. Thus, in such enquiries, one would expect to receive a good deal of hearsay evidence, and statements based on prejudice or pre‑conception and even mere gossip may be introduced. In such circumstances, it is impossible to preserve the rule of the best evidence." Further on, on the same page His Lordship continued to say :‑ "The process of decision provided under the Regulation is also foreign to justice, as administered by the Courts. The hearing is before a Jirga but the power of decision is vested in the Deputy Commissioner, who, does not see or hear the accused or any of the witnesses, and is not empowered by law to do so, even if he should so desire. In these circumstances, the Jirga is a merely advisory body, and since the Deputy Commissioner does not have the case presented before him through counsel, it is obvious that his decision is wholly vicarious. Decisions of this nature are common enough on the administrative side, but they are obnoxious to all recognized modern principles governing the dispensation of justice. In such circumstances, it is impossible to preserve public confidence in the justice of the decision. That may be of secondary importance to an administrative agency, but it is of permanent importance to a Court of justice." It is, thus, clear that the unfortunate person whose case is withdrawn from the ordinary courts for trial by the Council of Elders is subjected to a procedure, if it can be called a procedure at all, detrimental to his interests in the extreme. His rights to be tried strictly in accordance with the law are curtailed substan tially. It will be noticed from section 12 of the Regulation that imprisonment, fine, and even whipping can be imposed upon the culprits. It will also be noticed that the sentence of death cannot be passed upon an offender who has committed murder and is found guilty by the Council of Elders. There is, thus, a room for the Deputy Commissioner, if he is favourably inclined towards a certain person, to withdraw his case from the Court of Session just to save him from the gallows. If two persons are charged for the commission of the same murder, the Deputy Commissioner, without being guided by any rule of guidance, can withdraw the case of one and refer it to a Jirga and leave the case of the other to be tried by the ordinary Court of Law. In this situation, there is the possibility of the two Tribunals coming to a conflicting decision. "The rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants who are similarly situated are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimina tion." This sentence I have borrowed from Anwar Ali's case. I am, therefore, quite clear in my mind that as section 11 confers an unguided, uncontrolled and arbitrary power on the Deputy Commissioner and completely excludes a discretion of judicial nature, and also because it lays down a procedure which f is different from the procedure applicable to the people similarly situated, it is hit by Article 5 of the Constitution, and is completely void under Article

4. In this respect, I fully endorse the judgment delivered by Kayani J. in Abdul Akbar Klan's case (P L D 1957 (W.P.)Pesh. 100) and by my esteemed Lord the Chief Justice of West Pakistan High Court in Malik Tooti Khan's case (P L D 1957 Quetta 1). In coming to this conclusion, I have also been to a very great extent influenced by the lucid and learned judgment of my esteemed Lord the Chief Justice of Pakistan in the famous Foreign Exchange case Waris Meah v. The State reported in (P L D 1957 S C (Pak.) 157). There too, different procedures were prescribed for three different Tribunals. The Act contained no indication as to which class or classes of cases were to go before a Court. and which before the Tribunal and the Adjudication Officer. The Act did not impose upon the Central Government the obligation or expressly confer upon it the power of making rules with a view to classify the cases to be tried by each of the Tribunals; nor did the Act define the principle or policy upon which such classification could be made by the Central Government or the State Bank. The result, according to His Lordship, was that in the state of law as it existed, no person, who was alleged to have contravened any provision of the Act, could know by which Court he was to be tried and whether on conviction he would be punished with imprisonment or punished with imprisonment and fine, or let off with a mere penalty of three times the value of the amount involved. His Lordship arrived at the conclusion that the Act conferred 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 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. These remarks of the learned Chief Justice apply on all fours to section

11. Here too, if a person commits a murder, apart from other things, he will not know whether he will be tried by the ordinary courts or by Jirga. If he is tried by the latter, in case of conviction, he is liable to be sentenced to the maximum of fourteen years' rigorous imprisonment, and if by the former, to death. After holding that section 11 should be' eliminated from the Regulation, the next question which will arise for consideration will be as to what effect will it have on :‑ (1) the pre‑Constitution cases, (2) cases pending at the time when the Constitution came into force, and (3) post‑Constitution cases. So far the last category of cases is concerned, there should be n difficulty in holding that the proceedings taken and the convictions recorded after the 23rd of March 1956 are void, and, therefore, t liable to be quashed. As regards the concluded cases, it will lie seen that section 11 is struck out of, the Regulation, because it offends against the fundamental rights guaranteed by the Constitution. Prior to 23rd of March 1956, on which date the Constitution of Islamic Republic of Pakistan came into force, we, the citizens of Pakistan, did not enjoy any of the fundamental rights, including the right envisaged in Article

5. The Legislature then had a free hand to pass any kind of law affecting our lives, liberties and properties without any check or restraint. The general rule in regard to Interpretation of Constitution is 'embodied in the maxim nova constitution futuris formaiii debet imponere non-praeteritis (No Constitution is to have a retrospect beyond the time of its commencement), unless of course if the contrary is expressly or impliedly mentioned in the law itself. Under section 60, Frontier Crimes Regulation, all decisions, decrees, sentences or orders given, passed or made under the Frontier Crimes Regulation could not be called in question in, or set aside by any Civil. or Criminal Court. If, therefore, before the Constitution came into force, a person had brought an action that the proceedings under the Frontier Crimes Regulation were bad in. law, because they violated fundamental right of an individual, then he would certainly have been out of Court on account of the non‑existence of the very basis of his claim. An attempt was made to have a decision made under section 11 of the Regulation, set aside on appeal in the Federal Court in 1954, and it was held in, Samandur's case referred to above that orders made and sentences passed under the Regulation were not open to appeal to that Court. The same principles would apply to the High Courts. So, what we could not do directly then cannot be done indirectly now by reason of the fact that a new law has come into operation. In fact, with regard to the existing law, as the Regulation is, the words of Article 4 of the Constitution; are in themselves very clear and admit of no doubt. It lays down that any existing law in so far as it is inconsistent with in provisions of this part shall to the extent of such inconsistency be void. Where it says "shall be void" it speaks of future and not of past, otherwise it would have said that it "shall be deemed to be void from its very inception." Giving retroactive operation to Article 4 will necessarily impair the vested rights and existing obligations of the people under the void Acts which is contrary to time‑honoured principle governing the Interpretation of Statutes. It is, however, argued that section II having been destroyed by the Constitution, the orders made or sentences passed under it have automatically been rendered void, and they, therefore, cannot be allowed to be executed. This contention is based upon the argument that there is no saving clause in the Constitution on the lines of section 6 of the General Clauses Act of 1897, which runs thus:- "

6. Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals by enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not :‑ (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired. accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such .right, privilege, obligation, liability penalty, forfeiture or punishment as aforesaid: and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." It is submitted that the fact that section 11 of the Regulation has been declared void cannot by any stretch of imagination be said to amount to repeal of the section. The orders, therefore, passed under it automatically become ineffective on the date when the Constitution was passed. When Article 4 of the Constitution says that a certain existing Act shall be void to the extent of its inconsistency, it cannot be said that it means that the void provisions should be completely obliterated from the Statute‑Book and taken to be void from its very birth. That would tantamount to giving retrospective effect to Article 4, which as I have already said, is not warranted by the principles governing the interpretation of Statutes and the clear words of the Article itself. In my view, all existing law, even if they are inconsistent with the fundamental rights guaranteed by the Constitution, remain good laws for determining the rights accrued, and obligations of the citizens incurred, prior to the passing of the Constitution. The people, thus, who were convicted and the orders of whose convictions became final prior to the Constitution‑day, cannot come forward now and say that the proceedings taken against them and the convictions recorded under the law which was valid at the time when such proceedings were taken and the convictions were recorded, should be set aside on the basis of law which has now come into force, but was not in existence then. This question came up before the Supreme Court of India and was discussed by the all five Judges at very great length in Keshvan Madhava Menon's case (A I R 1951 S C 128). All the five Judges were agreed, although they differed on some other matters, which would be presently discussed in this judgment, that "before the Constitution came into force, there was no such thing as fundamental right. As the fundamental rights became operative only from the date of the Constitution, the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. Therefore, Article 13(1) can have no retrospective operation but is wholly prospective." They held that the, transactions which are past and closed and rights which have already vested will remain untouched. Again, this question was considered by five Judges in Janardhan Reddy and other's case (A I R 1951 S C 217 at p. 225), the learned Judge observed as under Which may briefly the facts already narrated, it should be clear that the judgment of the High Court affirming the convictions and sentences of the petitioners had acquired finality in the fullest sense of the term before 26th January 1950 (this is the date when Indian Constitution came into force) and by reason of this finality no one could question the validity of the convictions at the date when the Constitution came into force. Can then a new law or a change in the old law entitled us to reopen a transaction which has become closed and final? It is common ground that the provisions of the Constitution which are invoked here were not intended to operate retrospec tively and therefore something which was legally good on 25th January 1950, cannot be held to have become bad on 26th January 1950. If we had no jurisdiction to sit in appeal over the judgment of High Court can we not reinvestigate the cases and pass orders which cannot be passed without virtually setting aside the judgments of the High Court which have become final. Can we in other words, do indirectly what we refused to do. It is argued, that we are asked not to reopen a past transaction but to deal with the present detention of the petitioners, i.e., their detention at this moment. But, how can we hold the present detention to be invalid unless we reopen that could not be reopened prior to 26th January 1950. This is, in our opinion, one of the greatest difficulties which the petitioners have to face, and it rests not merely on technical grounds but on sound legal principles which have always been and should be respected." The above remarks apply with force to the facts of the present case. A similar question engaged the attention of the learned Judges of the Supreme Court of India in Behram Khurshid Pesikaka s case reported in (A I R 1955 S C page 123) paragraph 50 at page 145 Bhagwati J. observed as under: ‑ "The meaning to be given to the expression "void" in Article 13(1) is no longer res‑integra. It stands concluded by the majority decision in A I R 1951 S C

128. The minority view there was that the word "void" had the same meaning as "repeal" and therefore a statute which came into clash with fundamental rights stood obliterated from the statute book altogether, and that such a statute was void ab‑initio. The majority, however, held that the word "void" in Article 13(1) so far as existing laws were concerned, could not be held to obliterate them from the statute book, and could not make such laws void altogether, because in its opinion, Article 13 had not been given any retrospective effect. The majority, however, held that after the coming into force of the Constitution the effect of Article 13(1) on such repugnant laws was that it "nullified" them, and made them ineffectual and nugatory and devoid of any legal force or binding effect." "It was further pointed out in one of the judgments represen ting the majority view, that the American rule that if a statute is repugnant to the Constitution, the statute is void from its birth, and has no application to cases concerning obligations, incurred or rights accrued in accordance with an existing law that was constitutional in its inception, but that if any law was made after the 26th January 1950, which was repugnant to the Constitution, then the same rule shall have to be followed in India as followed in America. The result, therefore, of this pronouncement is that the part of the section of an existing law which is unconstitutional is not law, and is null and void." "For determining the rights and obligations of citizens the part declared void should be notionally taken to be obliterated from the section for all intents and purposes, though it may remain written on the statute book and be a good law when a question arises for determination of rights and obligations incurred prior to 26th January 1950, and also for the determina tion of rights of persons who have not been given fundamental rights by the Constitution. Thus, in this situation, there is no scope for introducing terms like "relatively void" coined by American Judges in construing a Constitution which is not drawn up in similar language and the implications of which are not quite familiar in this country." I am, thus, of the view that so far as the cases already concluded and closed are concerned, they are not affected by, the fact that Article 5 of the Constitution has rendered section 11 of the Regulation "void." The next question to be determined is as to what effect the passing of the Constitution has on the cases which were pending at the time when it came into force. Such cases shall have to be split up into two categories. One category will be of those cases which relate to the substantive rights acquired or liabilities incurred under the Act, which has been rendered "bad" by the Constitution. The second category of the cases will be touching the procedure, i.e., when the procedure is hit by Article 5 of the Constitution as discriminatory. Maxwell in his Interpretation of Statutes says the following :‑ "No person has a vested right in any course of procedure. He has only the right to prosecution or defence in the manner prescribed for the time being by, or for the Court in which he sues, and if an Act of Parliament alters that mode of proceeding he has no other right than to proceed in accordance with the altered mode." According to this principle then, if the Constitution renders the procedure "and", then after it came into force, it cannot be allowed to exist. The accused, who is tried .by the procedure laid down by section 11, Frontier Crimes .Regulation, may well ask, "Article 5 of the Constitution has come into force and yet I have been meted out discriminatory treatment, that is, treat ment different from the one which is meted out to‑ several other persons who are shnilarl3 placed as myself ? There is absolutely no answer to this question, In Menon's case the Secretary of People's Publishing Housc Ltd., had printed a pamphlet without the authority required by section: 15 (1) of the Press and Registra tion of Books Act XXV of 186;', and was for that reason prosecuted and the proceedings against him were pending at the time when the Constitution of India carne into force. The Press (Emergency Powers) Act was rendered "void" in view of Article 19 (1) (a) read with Article 13 of the Indian Constitution. The accused moved the High Court of Bombay. that the proceedings be quashed. This application was dismissed on the ground that the word "void" was used in Article 13 (1) in the sense of repeal, and that consequently, it attracted section 6, General; Clauses Act, which Act by Article 367 was made applicable'' for the interpretation of the Constitution., it, therefore, reached the conclusion that the proceedings under the Press (Emergency Powers) Act, which were pending at the date of the commence ment of the Constitution, were not affected even if the Act was inconsistent with the fundamental rights. The accused went up on appeal against this order to the Supreme Court. The appeal was heard by seven Judges. Five of the Judges were of the view that the Act related to substantive law, and therefore, if an Act was done before the commencement of the Constitution, in contravention of the provisions of this Act, which, after the Con stitution, became "void" with respect to the exercise of any of the fundamental rights, the inconsistent law was not wiped out so far as the past act was concerned. Fazal Ali and Mukherjea, JJ however came to the conclusion that Article 13 did not affect the transactions which were past and closed and rights wh‑ch had already vested would remain untouched, but with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings whether not yet begun, or pending at the time of the enforcement of the Constitu tion, and not yet prosecuted to a final judgment, a law which has been declared by the Constitution to be completely ineffectual could no longer be applied. The matter again came up before five Judges in Lachman Das Kewalram's case reported in (A I R 1952 S C 235). The view, the Chief ; discrimination not only by a substantive law, but also by a law of procedure. They further observed that in the absence of any special provision to the contrary, no person has a vested right in procedure. It must follow as a corollary that. nobody has a vested liability in the matters of procedure in the absence of any special provision to the contrary. If this is the position when the law of procedure is altered by a statute, the position would not be different when the Act prescribing the discriminatory procedure becomes void by reason of its repugnancy to the equal protection clause of the Constitution. Their Lordships continued to say that although the substantive rights and liabilities acquired or accrued before the date of the Constitution remain unenforce able nobody can claim after that date that these rights and liabilities must be enforced under that particular procedure, although it has, since that date, come into conflict with the funda mental right of equal protection of laws guaranteed by Article

14. Regarding the procedure prescribed by the Bombay Act, their Lord ships remarked that the special procedure prescribed by this Act constituted a departure froth the ordinary law of procedure and was in some important respects, detrimental to the interests of the persons subjected to it and was as such discriminatory. According to their Lordships' view, as the Act was valid in its entirety before the date of the Constitution, that part of the proceedings before the Special Judge, which up to that date had been regulated by this special procedure, could not be questioned, however discrimina tory it might have been, but the continuation of the application of the discriminatory procedure to their cases after the date of the Constitution constituted a breach of their fundamental rights guaranteed by Article 14, and being inconsistent with the provi sions of that Article, the special procedure became void under Article 13, and as there was no vested eight or, liability, the accused were entitled to be tried according to the ordinary procedure after the date of the Constitution. This question was once again considered in Sayed Qasim Rizvi's case reported in (A I R 1953 S C 156). The majority of the Judges were of the view that trial having commenced under Special Tribunals Regulation, before coming into force of the Constitution, the validity of the subsequent proceedings depended on questions as to whether the accused had been deprived of equal protection in the matters of procedure and it was incumbent upon the Court to consider firstly, whether the discriminatory or unequal law could be separated from the rest, and even when a fair measure of equality in the matter of procedure could be secured to the accused. It should, however, be not forgotten that S. Qasim Rizvi's case in India was a case of unusual character. The conclusion at which I have arrived is that if the procedure laid dory n in a certain enactment is hit by the "equality before law and equal prosecution of law clause" of the Constitution, then it cannot be allowed to be pursued. Up to be Constitution‑ S day, it was perfectly legal to follow that procedure, but after the passing of the Constitution, whatever is left behind in the case cannot fee determined by a, void procedure. Needless to say that section 11 of the Regulation is not a substantive law, but is purely procedural in character. The cases, therefore, which were pending at the time the Constitution came into force, cannot be allowed to proceed under the offending procedure. Rest of the section and the F. C. R. may not be discussed now, because they are not relevant to the case under discussion. In the light of the above observations, I now proceed to discuss each case separately. (1) Misc. Application No. 116 of 1954 by Abdul Rauf, Abdul Aziz, Abdul Hafiz, and Abdul Azim under section 223‑A of the Government of India Act.‑This application will now be treated under Art. 170 of the Constitution of Islamic Republic of Pakistan. The four persons mentioned above along with Khan Mian, Ashiq Mian, Muhammad Akbar, and Muhammad Umar, were indicted f or the murder of Bilal Mian, his wife, his daughter, his son and his maidservant, on the night between 4th and 5th' of July 1950. The Deputy Commissioner, Peshawar, referred the question of their guilt to the decision of a Council: of Elders, consisting of Mr. Muhammad Masud, Assistant Commissioner, Nowshera, (President), Mr. Khalid Mahmood, Executive Engineer, Electricity, Nowshera, Khan Abdul Ghafur Khan of Umarzai, and Yar Muhammad Khan of Matta. The Council of Elders recommended that all these persons were guilty of the. murders and along with them a witness by the name of Sherzada son of Said Faqir was also guilty. The Deputy Commissioner, Peshawar, accep ting the recommendations, convicted the six persons under section 302, P. P. C., and sentenced them to fourteen years' rigorous imprisonment each, except Khan Mian, who was sentenced to ten years' rigorous imprisonment. Their revision petition was rejected, and sentences confirmed by Major Allahdad Khan, the then Commissioner F. C. R. on the 17th of April 1952. Since this case concluded before the Constitution came into force, therefore, the petition stands dismissed. (2) Misc. Application No. 166 of 1954, under section 223‑A of the Government of India Act read with section 498, Criminal P. C., by Ghulam Ghaus Khan son of Amirullah Khan, Editor, Daily "Hamara Pakistan," Peshawar City. This application challenges the validity of the imprisonments of Muhammad Ali Khan, Khaista Khan, Faujun, Ajoon, and Said Qamar, residents of village Daulat, Tehsil Swabi. The five accused on behalf of whom the petition was made were accused of com mitting the murder of one Mst. Wafa Jan on an unknown date. The Deputy Commissioner, Mardan, by his order, the 7th of April 1952, referred the question of their guilt or innocence to the decision of a Council of Elders, consisting of E. A. C. Swabi, Fazal Rabi Naib Tehsildar, and S. T. O, Swabi. The Jirga found the accused guilty, and the Deputy Commissioner; accepting this finding, convicted them by his order, dated the 16th of January 1952, under section 302, P. P. C and sentenced them each to fourteen years' rigorous imprisonment. The Commissioner con firmed these sentences on the 26th of July 1952. This case was also concluded before the 23rd of March 1956, and can, therefore, not be reopened in the exercise of the writ‑jurisdiction of this Court. The application is, therefore, dismissed. (3) Misc. Application No. 222 of 1955, under section 491, Criminal P. C. by Fazal Muhammad. The petitioner, along with Masal Gharib and Muhammad Ishaq were accused of the Murder of Musamir Shah on the 16th of February 1953. Their case was referred to the Council of Elders, consisting of Assistant Commissioner, Charsadda, Shahbaz Khan, E. A. C. Peshawar, and Abdul Rauf Khan, E. A. C. Peshawar, by the order of the Deputy Commissioner, Peshawar, dated the 29th of March 1953. The Members of the Jirga found Fazal Mahmood and Aslam alone guilty of the murder. The Deputy Commissioner, Peshawar, by his order, dated the 30th of September 1953, convicted Fazal Muhammad alone under section, 302, P. P. C., and sentenced him to fourteen years' rigorous imprisonment. The sentence was confirmed on the 17th of November 1953, and the revision application rejected by the Commissioner F. C. R., on the 12th of December 1953. This case is also of the pre‑Constitution period, and therefore, cannot be reopened. The application is, therefore, dismissed. (4) Misc. Application No. 240 of 1955 by Sardar Khan son of Sharjf Khan under section 491, Criminal P. C. It was made on behalf of Sarmast son of Sardar Khan, who was accused along with his brothers, Bahadur,Sher, Sher Bahadur, Khan Bahadur, and Khan Sher, for the murder of Amir Nawaz son of Didar Gul, on the 9th of September, 1953: The case was referred for the decision of the Council of Elders, consisting of Assistant Commissioner, Charsadda, Mr. Muhammad Zaman Khan, E. A. C. Charsadda, and Tehsildar Charsadda, by the order of the Deputy Commissioner, Peshawar, dated the 23rd of December, 1953. The Members of the Jirga found Sarmast and Sher Bahadur guilty of the murder by their report, dated the 21st of January 1954. Both these persons were convicted under section 302, P. P. C., and sentenced to fourteen years' rigorous imprisonment by the order of the Deputy Commissioner, Peshawar, dated the 27th of January 1954. Mr. Dent confirmed the sentence of Sarmast, but acquitted Sher Bahadur, by his order, dated the 27th of March 1954. This application is also of pre‑Constitution period, and is, therefore, dismissed. (5) Misc. Application No. 86 of 1954. by Nawaz Khan for the issue of a writ of habeas corpus for the release of Karim Khan, Bahadur Khan and Hukmat Khan. These three persons along with Diyar Khan and Nawaz Khan were charged for the murder of one Sarfaraz and the attempted murder of Muhammad Yunas on the 9th of November, 1952. They were committed to the Court of Session by Magistrate; First Class, Mardan, by .his order, dated the 31st of January 1953. The case was, however, withdrawn from the Court of Session under section 18, Frontier Crimes Regulation, and the question of their guilt or innocence was referred to the Council of Elders, consisting of Mr. Kala Khan, Assistant Commissioner, Fazal Rehman Khan E. A. C. Mardan and Pir Mukamli Shah, Traffic Magistrate, Mardan, by Deputy Commissioner, Mardan, by his order dated the 2nd of September, 1953. The Council of Elders found Bahadur Khan, Karim Khan, and Hukmat Khan guilty and the rest not guilty. The Deputy Commissioner, Mardan, by his order, dated the 9th of December 1953, accepting the recommend ations of the Council of Elders, convicted Bahadur Khan and Karim Khan under sections 302, P. P. C., and 307, P. P. C. On the first count, they were sentenced to fourteen years' rigorous imprisonment each and on the second to three years' rigorous imprisonment each, both the sentences to run concurrently. He found Hukmat Khan guilty under sections 302/109 and 307/109 P. P. C., and sentenced him to fourteen years, and three years' rigorous imprisonment on each count. In his case also, the two sentences were ordered to run concurrently. The sentences were confirmed by the Commissioner F. C. R. on the 28th of March 1954. This petition also relates to the period prior to the Constitu tion‑day, and is, therefore, dismissed. (6) Misc. Application No. 100 of 1954 by Shahin Shah, Mubarak Shah and Sangin Shah, sons of Mian Jaffar Shah, residents of Shah Abad, under section 223‑A Government of India Act, and 491 Criminal P. C. The three petitioners, who happen to be the sons of one of the Members of the Central Cabinet, were accused of murdering two sisters, namely, Mst. Kishwara and Mst. Sardara, on the 13th of March, 1953. The Deputy Commissioner, Peshawar, referred their case to the decision of a Council of Elders, consisting of Assistant Commissioner, Charsadda, Khan Abdul Qadir Khan, E. A. C. Peshawar, and Khan Sher Zaman Khan, Additional Revenue E. A. C. by his order, dated the 3rd of June 1953. On the 20th of July 1953, Khan Sher Zaman Khan was transferred from Peshawar, and he was, therefore, replaced under the orders of the Deputy Commissioner, Peshawar, by Mr. Abdul Rauf Khan, E. A. C. Peshawar. The Council of Elders found all the three accused guilty on the basis of which, the Deputy Commissioner, by his order, dated the 5th of August 1953, convicted them under section 302, P. P. C., and sentenced them each to fourteen years' rigorous imprisonment. Three other persons, namely, Hayat Gul, Azizur Rehman and Fazal Manan were found not guilty and acquitted. The Commissioner F. C. R. confirmed their sentences on the 29th of April 1954. An additional argument has been raised in this case that the Council of Elders which gave the final opinion was not the one which had heard the evidence. This argument, however, loses sight of the fact that no special form of inquiry is laid down in the Frontier Crimes Regulation. If the members of the Council of Elders who gave the opinion are satisfied from the inquiry made by other members of the Jirga that the accused are guilty, they can, under the law, act and base their opinion upon it. The application also relates to the period prior to the 23rd of March 1956, and is, therefore, dismissed. They are on bail and have been taken into custody to serve the remaining of their sentence. (7) Misc. Application No. 301 of 1956 under Article 170 of the Constitution of Islamic Republic of Pakistan, read with section 491, Criminal P. C. by Dil Aram, Torai, Maluk Hamesh, through Khan Sherin. It was sometime in May or June, 1955, that one Muhtaj Nabi was murdered. His step brother, Sakar, accused Dil Aram, Maluk, and Torai, for having committed this murder. On the other hand, Dil Aram charged Sakar, Sher Hassan, Hamesh Gul, Muhammad Shah, Haya Gul and Saida Gul for the same. The case was first challaned to a Court of Magistrate First Class, who recorded the statements of several prosecution witnesses, when the Deputy Commissioner, Mardan, stepped in and referred it to a Council of Elders, consisting of Faqir Ahmad Saeed Khan, Pir Astam Shah, Traffic Magistrates, and S. Imran Shah, Assist ant Commissioner, Mardan, and Gul Hassan Khan, retired Sub Inspector of Katlang. The members of the Jirga recommended as under :‑ (1) Dil Aram, Torai and Maluk have killed the deceased, and (2) Dil Aram accused has committed criminal breach of trust in respect of Rs. 10,000 which he had taken from the mother of the deceased. Accepting the finding of the Council of Elders, the Deputy Commissioner, Mardan, by his order, dated the 12th of September 1956, convicted Dil Aram, Torai, and Maluk under sections 302/34 P. P. C. and sentenced them to fourteen years R. I. each. Haniesh Gul was convicted under section 201, P. P. C. and sentenced to five years' R. I. The sentences were confirmed by Khan Sher Afzal Khan, Commissioner, F. C. R., by his order, dated the 25th of October 1956. As found in the earlier part of this judgment, the Jirga proceedings with effect from 23rd of March 1956, when the Constitution of Islamic Republic of Pakistan came into force, became bad in law, and are therefore, quashed. The accused stand in the same position as they were on the Constitu tion, day. This application is accepted to the extent mentioned above. The accused shall be set at liberty forthwith. (8) Writ Petition No. 166 of 1956 by Khanzada under section 491 Criminal P. C., and Art. 170 of the Constitution of Islamic Republic of Pakistan with regard to Khan Bahadur, son of Abdul Ghani. Khan Bahadur along with Naqib Muhammad and Amanullah alias Ghazi was charged with the attempted murder of Mohabat etc. by firing at them on the 3rd of May 1955, at 8.30. a.m. They were arrested and sent up before Magistrate First Class, Char sadda, who recorded the evidence of ten prosecution witnesses, when by the order of the Deputy Commissioner, dated the 1st of February, 1956, their case was referred for the decision of the Council of Elders, consisting of K. S. Rashiduddin Khan, Khan Chaman Khan and Mr. Mohibur Rehman Khan Kayani. The members of the Jirga started recording evidence on the 18th of February 1956, and continued it till the 6th of May 1956, when they submitted their award, holding Khan Bahadur guilty of shooting and maiming the he‑buffalo and also for attempting to commit the murder of the opposite party. The Deputy Com missioner, by his order, dated the 16th of May 1956, convicted Khan Bahadur under sections 307 and 428, P. P. C., and sentenced him to four years' and one year's R. I. respectively. Both the sentences were ordered to run concurrently. In this case, it will be noticed that while the prosecution evidence and statements of the accused were recorded before the Constitution‑day, the evidence of the defence witnesses and the award were written after it. In pursuance of the arguments given above, I quash the lirga proceedings, and for that matter, the convictions and sentences of Khan Bahadur under section 12, Frontier Crimes Regulation. He shall be set at liberty at once. This will, how ever, not mean that the magisterial proceedings taken against him are also quashed. (9) Petition. No. 285 of 1956, under Article 170 of the Con stitution of Islamic Republic of Pakistan, read with section 491, Criminal P. C. by Gauhar Rehman Khan, son of Arsallah and Muhammad Shafi son of Azizur Rehman. These two persons along with Abdul Rehman, Fazal Ilahi and Gnulanr Nabi were charged for the murder of Habibur Rehman sometime in August 1954. They were challaned to a Court of Law when on the 11th of April 1955, the District Magistrate, Hazara referred their case to the decision of the Council of Elders consisting of the joint Deputy Commissioner Hazara, Naib Tehsildar Mansehra, and Tehsildar Mansehra. The Jirga members submitted their findings on the 19th of April 1956, i.e., after the Constitution‑day, holding Gauhar Rehman and Muhammad Shafi responsible for the murder. The Deputy Commissioner, Hazara, by his order, dated the 1st of August 1956, convicted them under section 30, P. P. C., and sentenced them each. to fourteen years' R. I. These sentences were confirmed by the Commissioner, F. C. R. on the 10th of August 1956. This is also a post‑Constitu tion case and the Jirga proceedings, including the convictions and sentences, taken and passed after the 23rd of March 1956, must be quashed. This application is, therefore, accepted and accused are, consequently ordered to be released forthwith. This would. however, like the previous case, will not mean that the magisterial proceedings, which are not assailed on any ground, are also quashed. (10) Misc. Application No. 33 of 1954, by Abdul Latif Khan, son of Haji Ata Muhammad Khan, of 11 Fort Road, Peshawar Cantt under section 223‑A of the Government of India Act as adapted by Pakistan. The charge against this petitioner is that he in his capacity as Treasury Contractor of Peshawar and Sub‑treasuries in Peshawar District, had committed criminal breach of trust to the tune of Rs. 3,89,972/3/9 by causing shortage in stamps and stationery etc. which were within his charge. The Deputy Commissioner, Peshawar, by his order, dated the 3rd of March 1954, referred the case to a Council of Elders, consisting of a City Magistrate, Peshawar, Mr. Zaidi, Assistant Commissioner, Peshawar, Mr. Abdul Mughni, Assistant Secretary, P. W. D., and Alif Din, Assistant Secretary Finance. Prior to that, two suits had been instituted, one by the Government on the 3rd of April, 1952, and the other by Mr. Abdul Latif Khan on the 15th of January 1954, with regard to the same contract out of which the above criminal breach of trust case had arisen. Abdul Latif Khan in his Civil Suit which was pending in the Court of the Senior Sub Judge, Peshawar, made an application under Order XXXIX, Rule 2, Civil P. C., for the issue of a temporary injunction against the Government, rest raining it from taking proceedings under section 11, Frontier Crimes Regulation. This application was dismissed by the Senior Sub Judge, but on appeal, I granted the temporary injunction prayed for, and so the Jirga proceedings came to a halt. Now, when the Constitution has been passed, naturally these proceedings cannot be started, because they offend against Article 5 of the Constitution of Islamic Republic of Pakistan. I, therefore, accept this petition and quash the Jirga proceedings. In all the post‑Constitution cases, I hereby direct that no proceedings under section 11, Frontier Crimes Regulation, will be taken against any one of accused. In view of the difficult questions involved in the case, I would leave the parties in all cases to bear their own costs. Per ABDUL HAMID, J.‑The question which has fallen to this Bench for decision is whether section 11 of the Frontier Crimes Regulation 1901 is repugnant to Article 5 of the Constitu tion. It is section 11 which is primarily under challenge. But since that section is within the ambit of the Regulation and the whole of the Regulation is subject to the provisions of the extent clause, the extent clause, i.e., sectional of the Regulation, has also been brought into discussion and we have been asked to examined it to see whether through its mediation provisions repugnant to Article 5 of the Constitution can be brought into play. Section I1 of the Regulation will be declared void if it is found that it is discrimina tory in character by its own effect. It will also be declared void if it is discovered that there is something in the language of the extent clause which permits section I 1 of the Regulation to be applied arbitrarily against any person or persons or is capable of being used with discrimination against any citizens. These questions can be answered by reference to the relevant provisions of the Regulation and the Constitution also in the light of the interpretation which Article 5 of the Constitution has received in the judgments of Courts. This note may be taken to bear the expression of my views on these questions. There lies enshrined in Article 5 of the Constitution an important fundamental guarantee which ensures to all citizens equality before law. Equality before law and equal protection of law have been guaranteed to Citizens of Pakistan. A guarantee of that tenor has its counterparts in some other Constitutions as well. But here in Pakistan the Courts have, for ascertaining the import of this guarantee, taken assistance from the interpreta tion placed upon it by Indian and American Courts. Reference to India became necessary because the guarantee stands in the Constitution of India in almost the same language as it stands in our Constitution. Assistance had to be sought from American decisions because the source of the guarantee lies to the Constitu tion of the United States of America. There is voluminous and illuminating literature on this subject in the treatise on Constitu tion law and in the judgments of Courts of Appeal of the United States of America, India and Pakistan. It will be in the light shed by that literature that the intent of section 11 of the Frontier Crimes Regulation 1901 will have to be guaged. Article 5 of the Constitution says :‑ "All Citizens are equal before Law." That means that if law, whether it is an entire piece of legislation or a provision thereof is applicable to the Citizens of Pakistan, it will apply to all Citizens alike and none who is within the application of that law will be permitted to be treated differently from the rest. The law shall have to be the same for all for whom it has been designed. Adverting to the case in hand if the Frontier Crimes Regulation is applicable to all persons residing in the six districts mentioned in subsection (3) of section I of the Regulation, the Regulation shall apply to all of them alike and if there is anything in any provision of the Regulation which permits any authority entrusted with the execu tion of the Regulation to apply any of its provisions to one set of people in those districts and to withhold its application from others that provision of the Regulation would be in conflict with this fundamental guarantee of equality before law and will be void. The second part of the Article says :‑ "All Citizens are entitled to equal protection of law." According to some authorities this part of the Article has the same meaning as 'the preceding part of it. It means in effect that protection which a piece of legislation has to confer will be conferrable upon all to whom that legislation is intended to apply. In the words of a famous writer on the subject the clause protects the farmer in his field and the millionaire in his palace. Its beneficent hand stretches to all alike within the bounds of law. It says "equal rights to all, special privileges for none." But it has been held by Courts both in U. S. A. and in India and later on by the Courts in Pakistan that this guarantee while it prevents any person or class of persons from being selected for discrimination does not prevent classification of certain set of people and their subjection to special legislation provided classification is not arbitrary and is based on reasonable grounds and the persons classified fall in a clearly identifiable class and the classification bears real and substantial relation to the object to be attained by the legislation. Human beings are so diverse in nature, attainments and needs and are engaged in the pursuit of so many different occupations and professions that it will result in chaos if all of them are treated alike and law for all of them be the same. In view of these variations in needs and nature of human beings legislatures have been permitted to classify nationals into group whose constituents should bear common characteristics and place them under a special Legislation suitable to their special needs and attainments. There are a very large number of decisions by the Supreme Courts of U. S. A. and India in which need for special legisla tion for special classes of people has been recognized and classification for distinct and separate legislation has been permit ted. From those decisions some of which are A I R 1951 S. C. p. 41 ; A I R 1952 S. C. pp. 75, 123, 221, 235, A I R 1953 S. C. pp. 91, 215, A. I R 1954 S. C. p. 545, A I R 1955 S. C. pp. 191, 334. and A I R 1956 S. C. pp. 20 and 479, the following principles can be deduced which would justify classification of people into groups and permit discriminatory legislation in relation to them. (1) Equality permits of discrimination in favour or against a class. It does not mean that every law must have universal application for all persons who are not by nature, attainment. profession and other circumstances in the same position. The needs and circumstances of different classes of persons require separate treatment. (2) In view of differences in different classes of people the State has power of classifying persons according to the needs, requirements, and treatment. Classification in some degree is likely to produce discrimination or inequality but the produc tion of such discrimination or inequality will not render an enactment void if classification is based on reasonable ground and the enactment deals equally with all the members of the class to which it applies. Classification, which is permissible on account of the varying needs and requirements of different classes of people or on account of the treatment which in view of difference in nature, attainment or profession is necessary, should be based on real and reasonable basis and on substantial distinctions in favour of the class and the distinction should bear just, reasonable and substantial relation to the object of the legislation. Classification should not be arbitrary and should not be without substantial basis. The principle of classification of nationals for distinct legislation has been accepted by our own Supreme Court in P L D 1957 S C page

7. It is in the light of these principles that the effect of sub sections (3) and (4) of section 1 and of section 11 of the Frontier Crimes Regulation is required to be judged and a declaration of their validity or invalidity has to be made. The examination of the provisions of subsection (3) of section 1 of the Regulation will reveal that the operation of the entire Regulation can be withdrawn from any total area by means of a Notification in the Official Gazette. It is now well‑settled on the basis of authorities of Courts in America, India and Pakistan that zonal laws are valid even if they are discriminatory in, character provided their operation has been confined to a specified) and identifiable zone or territory. Classification founded on territorial or geographical basis has been held to be valid and has been saved from the effects of Article

5. It has been held permissible to the Legislature to enact a discriminatory law in respect' pf any one part of the territory under its control. The authorities supporting this view are A I R (sic) S C pp. 191, 795, A I R 1956 S C pp. 20, 298, and

479. Subsection (3) of section I of the. F. C. R. is, therefore. not hit by Article 5 of the Constitution. If we turn to subsection (4) of section 1 of the Regulation we find that some part of the enactment are of general application to all the six districts and some can be made applicable to (a) Pathans, (b) Bilochis, and (c) "Such other classes, as the Local Government with the previous sanction of the Governor‑General in Council may by Notification in the Local Official Gazette declare to be subject thereto". In the explanation attached to this subsection it has been said: "The word 'Class' as used in subsection 4 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". Pathans and Bilochis are no doubt identifiable classes of people. If by a Notification under subsection (4) of section 1 of the Regulation is made applicable to them on the grounds that that would be of aid in the suppression of crime that Notification will not be hit by Article 5 of the Constitution. Classification in that case would not be arbitrary. It will have foundation in reasonable ground and will bear substantial relation to the object to be attained by this legislation, the object being suppression of crime prevalent in unusual degree amongst Pathans and Biluchis. The test laid down in the various rulings cited above stands satisfied. But in this subsection the Local Government has been further permitted to apply the provision of this Regulation "to such other classes as Local Government may declare to be subject thereto", and those other classes may be collectively described as persons who are subject to the Regulation. There is in my view a good deal in the language of this subsection which permits arbitrary classification. It allows people to be classified on any ground whatsoever. The discretion is unguided and unfettered. People of different nature and attainments may be selected and placed in a class and that classification may be without any reasonable basis and may not bear any relation to the object of legislation. The Local Government may select members belonging to a particular community or society or to a particular political party or people between certain ages and sizes and weights or people of a particular educational standard and classify them as a class subject them to the provisions of the Regulation. There is a clear per mission in the language of this subsection, read with the explana tion attached to it, to make this Regulation applicable to such persons. The language of subsection (4) read with the Explanation to that subsection is extremely wide in extent. It even permits some individuals to be classed as persons subject to the application of the Regulation. The Local Government can by Notification declare that Messrs X, Y and Z shall be persons collectively subject to the provisions of the Regulation. If the language of the subsection permits a course of that character to be pursued it is obvious that the subsection carries the seeds of arbitrary discrimination in ample measure and is for that reason discriminatory and void. It has been contended on behalf of the Government that a Notification issued under this subsection has made the rest of the provisions applicable to all persons residing in the defunct N. W, F. P. That Notification is no doubt valid. The power which the Local Government enjoys has not been abused. But as under section 21 of the General Clauses Act a Notification can be withdrawn by the Local Government at any time and another can be substituted therefor if the Notification by which all persons residing in the former N.‑W. F. P. were subjected to the provisions of the Regulation is withdrawn and another Notification is published in its place and a group of people are brought within the ambit of the Regulation in relation to whom classification is discriminatory that Notification will be permissible under the language of subsection (4) of section 1 of the Regulation but that Notification will be condemnable under Article 5 of the Constitution. There are obviously germs of discrimination in the language of subsection (4) of section 1 of the Regulation. That subsection is in my opinion void because it is capable of giving rise to a situation leading to inequality amongst the persons subject to the Regulation. In so far as section 11 of the Regulation is concerned the discrimination is too apparent. The language empowers the Commissioners and Deputy Commissioners to select the case of' any person subject to the Regulation without assigning any reason and order it to be placed before the Council of Elders instead of: allowing it to be dealt with in accordance with the provisions of Code of Criminal Procedure in a Court established under that Code. It is obvious that a provision of law which is capable of creating a situation of this nature is highly discriminatory in character. All Pathans, all Bilochis and all persons residing in the six districts of the former Province of the North‑West Frontier are subject to the provisions of the Regulation. But Deputy Commissioners or Commissioners can by their order place the case of any Pathan or Bilochi before the Council of Elders and allow the cases of other Pathans and Bilochis to be dealt with under the Code of Criminal Procedure. If in any one case two Pathans or Bilochis are co‑accused, he has power to place the case of one co‑accused before the Council of Elders and allow the other co- accused to face trial in a Court established by Criminal P. C. Discretion for such selection is unguided and unfettered. Dis criminatory nature of the trial before a Council of Elders has been sufficiently discussed at pages 236 and 237 of P L D 1954 F C p.

228. A person who is selected for trial before the Council of Elders under section 11 of the Regulation is compelled to suffer from various disabilities from which accused triable under the Code of Criminal Procedure are immune. He is deprived of privileges which are available in Court established under the Code. If we are to look for privileges which the Regulation can confer on criminals within its ambit we can find at least one which is within its gift. The maximum punishment prescribed for a person convicted of murder under the Regulation is im prisonment for a period not exceeding fourteen years while a person condemned for murder at a trial under the Code of Criminal Procedure stands exposed to the penalty of death. There is absolutely no doubt about the discriminator character of section 11 of the Regulation. The Commissioner and Deputy Commissioners are empowered to select any case a any of its stages, whether under police investigation or under inquiry in the Court of a Magistrate or in the Court of Session, for withdrawal from that investigation or Courts and to place before a Council of Elders. This selection is purely arbitrary, unguided and unfettered. If this section is capable of creating discrimination it is clearly repugnant to rule of equality before law embodied in Article 5 of the Constitution and is void. My learned brother has in his judgment exposed the dis criminatory character of section 11 of the Regulation at sufficient length. I am in full agreement with what has been said about its discriminatory nature there. I am also of the view that it is discriminatory in procedure and punishment. Provisions of law discriminatory in procedure have been condemned as repugnant to equality clause in A I R 1956 S C p.

479. Section 11 of the Regulation offends the equality clause of the Constitution (Article 5) in the same manner as the condemned provisions of the Foreign Exchange Regulation Act, 1947 offend that clause and were for that reason declared void in P L D 1957 S C p,

157. Both of them proceed on the same principle of discrimination. In both there is unguided, unfettered and arbitrary choice with the executive authorities to select a case for differential treatment on any ground whatsoever and submit it to a mode of trial under which the accused person has to face disabi lities which are alien (sic) to normal procedure of criminal triads. This section has already been declared void by a Quetta Bench of this Court in Writ Petition No. 17 of 1957 (Malik Tooti Khan's case). I am also in agreement with my learned brother, for the reasons stated by him that Article 5 of the Constitution is not retrospective in effect. Cases which were decided before the Constitution came into force are not covered by the privilege contained in Article 5 of the Constitution which the Constitution began to confer after its promulgation on 23rd March, 1956. Decisions in cases decided before that date were under the law which was valid then. Any sentence imposed under that law, when it was not invalid, will run its term. Nothing done under the law which was valid at the time when the sentences were passed will be disturbed. That view has been expressed by the Supreme Courts and High Courts both in India and Pakistan. I am also in agreement with my learned brother that in cases which were before the Council‑of‑Elders prior to the enforcement of the new Constitution but were completed after the Constitution will be hit by Article

5. Section 11 of the Frontier Crimes Regulation becomes void as from 23rd March 1956. It was killed by Article 5 of the Constitution on that day and was not alive for any purpose thereafter. No use could therefore be made of it after that date, and no sentence could be imposed under that section after the Constitution day. Anything done under that provision which came into conflict with Article 5 of the Constitution and was rendered void by it as from the Constitution day is invalid. Convictions founded on that section after 23rd March 1956 are not sustainable. In the light of these conclusions I agree with my learned brother in the decision of the cases disposed of by his judgment. HABIBULLAH KHAN, J.‑The exhaustive and elaborate dis cussion by my learned brothers of the case law on the subject of "equality‑before‑law", and "equal‑protection‑of‑law", clauses of Article 5, has left little space for me in the field. I, however, deem it my duty to make a present of my humble contribution to it. Before dealing with the constitutional controversy in issue, I would beg leave to make a passing reference to a matter discussed by one of my learned brothers, namely, as to "who are Pathans", "what is their origin and place of birth", and "wherefrom did they migrate". These are thorny questions, and I don't feel. inclined to offer any comments or venture any critics on the subject, firstly because these questions were not argued a J the bar, and secondly because they are not relevant to the matter in dispute. I think, it is best to leave this matter in the hand of historians, or to refer it to the judgment of more qualified and competent authorities, who have made a special study of the subject. Our opinion on the subject, one way or the other, is likely to give rise to an unnecessary extra judicial controversy in the public, and to create an embarrassing situation. As to the question of "classification", there is now over whelming authority in the decisions of the Indian as well as Pakistan Courts in support of the view, that classification whether based on territorial or racial or any other reasonable ground is not only permissible, but is also in a certain given situation absolutely necessary in the interest of good and sound administra tion. The condition, however, is that the classification must be rational and based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to bed attained, and that it must not be arbitrary and without a substantial basis. Unreasonable classification, that proceeds on irrelevant considerations, such as differences in race, colour, birth, or religion must be rejected by Courts. This principle has been consistently followed by almost all the Courts in India and Pakistan. Subsection (3) of section 1 of the Frontier Crimes Regulation reads as follows :‑ "It extends to the districts of the North‑ West Frontier Province, namely, Peshawar, Kohat, Hazara, Bannu, Mardan and Dera Ismail Khan, but the Provincial Government may, by notification in the Official Gazette, exempt any local area from the operation of all, or any of its provisions". This subsection makes territorial classification. and brings the entire area of the six districts within the operation of the Regulation. The learned counsel for the petitioners has not been able to convince us, that the classification is discriminatory, and as such, is hit by Article 5 of the Constitution. Therefore, for the reasons given by my learned brothers, which I need not repeat here, I entirely agree with their view, that the impugned subsection is not repugnant to the "equality‑before‑law", and "equal‑protec tion‑of‑law", clauses of Article

5. Subsection (4) of section 1 of the Regulation says :‑ "Sections I to 5 . . . . . . . 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 Biluchis, and against such other classes as the Provincial Government, with the previous sanction of the Governor General‑in‑Council, may, by notification in the local Official Gazette, declare to be subject thereto". Explanation to subsection (4) lays down :‑‑‑ "The word "class", as used in subsections (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 is important to mention here, that it is long since the Provincial Government has, by a notification published in the Official Gazette, extended the application of the Regulation to the entire population of the six districts, exempting no person or class of persons from its operation. At present, the Regulation applies to all the residents of the entire .defunct Frontier Province. There is difference of opinion between my learned brothers over the question, whether subsection (4) of section 1 is, or is not void. While Sheikh Muhammad Shafi, J. holds, that the sub section is not repugnant to Article 5 of the Constitution, Sheikh Abdul Hamid, J. is Pf the view, that it is hit by the Article. I have given my utmost thought to the matter and after considering the arguments advanced at the bar and the reasons given by my learned brothers, I feel inclined to agree with the view, that the' subsection is not hit by Article

5. The main argument advanced' in support of the view that the subsection offends against Article 5, is, that the Provincial Government at any time create a class of persons; which may be found to. be discriminatory in nature, and thereby subject some of the residents of the six districts to the application of the Regulation and exempt others. As already pointed out above, the Provincial Government has brought the entire population of the area under the operation of the Regulation and has not exempted any person or class of persons from its application, and as such, at present there is no discrimination whatsoever between persons or group of persons, and therefore the validity of subsection (4), as it stands at the moment, is not open to any objection. If, however, sometime in future the Provincial Government, in the exercise of its powers under subsection (4), creates 'a class, which results in discrimina tion between the residents of the area and the classification is not based on any real, adequate and substantial ground and it also does not bear reasonable relation to the object sought to be attained, a valid objection can be raised, and in my view the objection would be well‑directed. At present, we are not concerned with the hypothetical question, as to how the Provincial Govern ment would behave in future. Our function is to examine the situation, as it exists at this moment. If we find that at present there is no classification creating discrimination between the citizens, we are bound to hold it as valid, but if on the other hand, we discover that a classification has been made, which is discriminatory and is hit by Article S of the Constitution, we would not hesitate to strangulate the attempt, strangulate it with both hands, and declare the classification as void. Therefore, I am in full agreement with my learned brother Sheikh Muhammad Shafi, J., that subsection (4) is not repugnant to Article

5. This brings us to the main controversial issue raised over section 11 of the F. C. R., which reads :‑ "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 of several persons so accused, should be tried by a Court of any of the classes mentioned in section 6 of the Criminal P. C., 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 enquiry as may be necessary and after hearing the accused person . . ." The entire difficulty giving rise to the controversy has arisen from the fact, that the word "inexpedient" has been left unde fined in the Regulation. It is quite obvious, that it has been deliberately left to the sweet will of the Commissioner and the Deputy Commissioner to determine, as to in which case it is "inexpedient", that the question of the guilt or innocence of an accused person should be tried by an ordinary Judicial Court. The power vested in the two authorities is so wide and unlimited, that it is liable to be abused at any time, in any manner, and in any case. The Regulation furnishes no indication, as to how the question of "expediency" or "inexpediency" should be deter mined by the Commissioner and the Deputy Commissioner. It provides no rules for their guidance. Their actions are unfettered, absolute, and uncontrolled. The power placed in their hands is unlimited, subject to no restriction or restraint. The Regulation does not provide any statutory breaks on the administrative wheels of the Commissioner and the Deputy Commissioner, and they are perfectly at liberty to use the power not only discriminately, but also arbitrarily. It does not prescribe any rules or principles, expressly or impliedly, for their guidance, nor does it give any indication of the circumstances under which these powers can be exercised. It lays down no standard or criterion for them to make selection of the cases for trial under the F. C. R. No checks or safeguards are provided against capricious and whimsical use of the powers. It provides no scheme or arrangement designed to prevent any person or class of persons from being singled out, as a special object of discriminatory treatment. Discrimination between individuals and classes is allowed. In short, the two authorities are free to resort to the method of "pick‑and‑choose". In order to demonstrate and to expose in all its nakedness, the discriminatory character of the provisions of section 11 and the possibility of the abuse of the powers thereunder, we may examine one or two extreme illustrations, because the absurdity of the impugned provision in the section can be brought to light only by illustrations of rare occurrence. Suppose two persons, A and B, are charged with murder. Both of them have been caught red‑handed at the spot and there is overwhelming dis interested and independent ocular evidence to prove their guilt. They have made a clean breast of their guilt by making confessions, and there is also strong and convincing circumstantial evidence to corroborate their confessions. They are placed far trial in Sessions Court and witnesses are being examined. Before the conclusion of the case, the Deputy Commissioner, in the exercise of his powers under section 15 of the Regulation, instructs the Public Prosecutor to withdraw from the prosecution of one of the accused persons, A, and refers his case to a Jirga. The Sessions Judge is bound under subsection (2) of section 15 to stay pro ceedings with respect to A, though he will continue with the trial of B. On the strength of the evidence, the Sessions Judge finds B guilty of murder and awards him death sentence. On the other hand, A whose case has been referred to a Jirga, after he is found guilty, is sentenced only to 14 years' imprisonment. The results of the two trials held under two different systems bring into bold relief the discriminatory nature of section 11 beyond any con troversy. While in one case the criminal has paid the penalty with his life, in the other he has lost only his liberty for a specified period, but not his life. Let us now take a contrary illustration. Suppose two persons, A and B, are charged with the murder of C. The murder is committed at dead of night in darkness away from the village in a field, when there was nobody present. There is no ocular evidence. There are also no circumstances whatsoever connecting the accused persons with the crime. But the Deputy Commissioner is morally convinced, that they are guilty of the murder. The case is either in the investigation stage, or is pending in a Court of Law. The Deputy Commissioner is satisfied, that it is almost impossible to procure conviction of the accused persons in an ordinary Judicial Court. He withdraws the case of A from the Court and refers it to a Jirga for decision under the Regulation, leaving the case of Bin the Court. There being no evidence whatsoever against B, he is either discharged or acquitted, while A being found guilty by the Jirga, is convicted and sentenced to 14 years' imprisonment. It may sound paradoxical, as to how the Jirga has found A guilty of the murder, when there was no evidence worth the name against him and his co‑accused B was acquitted for lack of proof. When I say, that A is convicted by the Jirga, I base my conclusion on the undisputed fact, that the Regulation provides no rules for an enquiry by the Jirga. The Jirga and the Deputy Commissioner are immune from any obligation to observe the procedure laid down by the Criminal P. C., or to follow the rules of evidence prescribed by the Evidence Act. Neither the rules of evidence, nor the rules of procedure under the two Acts are binding on them. They can hold enquiry in any manner they choose. They can go even so far as to make secret enquiry and base their verdict on its result or even on mere rumours, because the Regulation lays down no mode of procedure for enquiry, nor does it impose any restriction, or place any restraint on the power of the Jirga to enquire into the guilt or innocence of an accused person. Therefore, if the Deputy Commissioner and the Jirga Members feel morally convinced, that the man is guilty, they can convict him straight way even, without recording any evidence, provided the accused person les been heard. Numerous illustrations can be easily given, in which the Commissioner and the Deputy Commissioner can abuse the power conferred upon them by section 11, but I don't want to load with them this judgment. It will have been noticed, that this discrimination springs up from the absence of any definition of the word "inexpedient", and the absence of any rules guiding the actions of the two authorities. They have unrestricted and absolute power to make selective discrimination. They can select any case for reference to Jirga; and similarly leave any case to the decision of a Judicial Court. The learned Attorney General has attempted to meet the petitioners objection with the argument, that no instance has been pointed out by the other side to show, that a Deputy Commissioner or a Commissioner has ever abused his power by discriminating the ease of one individual from that of the other. Such instances ace not wanting and can be very easily quoted, but it is not necessary to quote them here for the purpose of the constitutional question involved in the case. We are. not at all concerned with the question, whether in the past any Commissioner or Deputy Commissioner has administered the Regulation‑ discriminately. We are only concerned with the question, whether section 11, which is under scrutiny, confers upon the two authorities powers, which are capable of being abused in a discriminatory manner. This is the crux of the question and I have no doubt in my mind that the Commissioner and the Deputy Commissioner possess under the impugned section such dangerously wide powers, which if misused, are most likely to lead to disastrous consequences, and thereby shatter to pieces the entire judicial machinery. Here again, I may be permitted to give another illustration. Suppose an enthusiastic Deputy Com missioner of a certain district is enamoured of the alluring features of the Regulation and he decides to make full use of section 11. lie withdraws all the criminal cases for reference to Jirga, whether they are at the investigation stage, or are pending in Enquiry Courts or Sessions Court. When later other similar cases come up for trial before these Courts, he withdraws them one by one. It does not require any strenuous efforts at imagination to realise, that in the holy name of "inexpediency", with one stroke of his statutory rod, he can completely disarm the judiciary, paralyse the entire judicial machinery of his district, and scrap the fundamental rights guaranteed to the citizens. Let us take the case of another Deputy Commissioner, who finds no particular charm in the section and he sincerely believes that Jirga trials are not conductive to the dispensation of "equal justice" to all people. He accordingly does not withdraw any case for reference to Jirga, and allows the ordinary Courts to deal with them, as they come up before them for trial. It is not difficult to see, that by acting in this manner he can reduce section I1 to a dead letter, quite unconscious of the consequences, which are likely to flow from his decision. It is quite obvious, that section 11 places in the hands of the Commissioner and the Deputy Commissioner a highly dangerous weapon, which is liable not only to a discriminatory and arbitrary use, but also to an abuse of the worst degree. Further, though the Regulation has been made applicable to the entire population of the six districts, yet the Commissioner and the Deputy Com missioners can, in the exercise of their discretionary powers under section 11, prevent its application to all the people. They may apply the Regulation to some, and at the same time may not apply it to others They can create a class of their own choice, and this class will be a class within the class constituted by section 1 of the Regulation and the notification referred to earlier. While the classification made by the Regulation will be a valid and legal classification, as already held by us, the classifica tion made by the Commissioner or the Deputy Commissioner will be an unreasonable and discriminatory classification, and as such, absolutely invalid and unconstitutional. The inevitable result would be, that the D. C. made classification would completely nullify and neutralise the Regulation made classification, and thus what was otherwise valid, will be rendered invalid by the exercise of discretionary power under section