P L D 1963 Supreme Court 373 (PLP)

CORNELIUS, C. J.‑--The appellants are accused persons in a case of murder in the Peshawar district, in which the candid admission was made by the prosecution that the "case is judicially weak and would not stand the test of judicial scrutiny". The case was accordingly referred to a jirga under section 11 of the Frontier Crimes Regulation by the Deputy Commissioner of Peshawar. The jirga of four persons headed by an Assistant Commissioner reported that the accused were innocent. The report sets out the essential features of the case, states that witnesses for the prosecution and the defence were examined, and in addition, open and secret enquiries were made, and the spot was inspected by the three members other than the Chairman, and the jirga's opinion was that the accused had been falsely implicated, on account of previous enmity arising out of a murder case; moreover the deceased "had a bad reputation" and had "a lot of enemies". The Deputy Commissioner accepted that finding and acquit ted them. His order contains the following significant passages:‑-- (1) "As it is a night murder case in which the deceased died without making any dying declaration and none of the P. Ws. had actually seen accused firing at the deceased, the case has become judicially weak. Being a night occurrence, the question of identification of the accused is also doubtful". (2) "All the jirga Members are men of status and integrity and they have committed no irregularities during the course of jirga proceedings. As such I have no reason to disagree with their findings." A revision was taken by a relative of the deceased person before the Commissioner under section 49 of the Frontier Crimes Regulation and the Commissioner remanded the case "for refer ence to a new jirga for further enquiries and fresh order", stating the following grounds:-- (1) The accused person were charged in the F. I. R. made on the same night soon after the occurrence ; (2) there was a strong motive ; (3) there was ocular evidence in the case ; (4) in spite of this the jirga had held the accused innocent without giving any reason in support of their finding ; (5) only three of the four members of the jirga inspected the spot ; this should have been done by all of them; and (6) the jirga should have gone "deeper into the case". Thereupon, a writ petition was moved by the accused persons to obtain quashment of the order of the Commissioner, which was resisted by the Commissioner on the following grounds, namely:

(1) that the order remanding the case for a fresh trial was legal and within his competence and also showed in what respects the Commissioner thought that the proceedings of the jirga were defective and irregular ; and (2) although the words used were not precisely those of the proviso to section 50 of the Frontier Crimes Regulation, namely, that the Commissioner should find "a material irregu larity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice" this was not strictly necessary in view of the decision by a Full Bench of the High Court in the case of Firdaus v. Pakistan P L D 1961 Pesh.

165. As we are clearly of the opinion that the case was one in which the High Court should not have interfered since it belonged to a jurisdiction which is totally foreign to the whole range of administration of justice over which the High Court presides as a Superior Court, it is necessary that we should make reference to the judgment delivered in the case of Firdaus. That was a case of similar nature, namely, the Deputy Commis sioner had acquitted on the basis of a jirga's finding, but the Commissioner had accepted a revision petition by a private person and having set aside the order of the Deputy Commis sioner had remanded the case for trial by a new jirga. Firdaus and his co‑accused had moved a writ petition, and this coming before the Full Bench, the learned Judges proceeded immediately to examine the order of the Commissioner for compliance with the proviso to section 50 of the Regulation. Section 50 reads as follows :‑‑‑ "

50. The Commissioner may, in the exercise of his revi sional jurisdiction in any criminal proceeding, exercise the power to direct tender of pardon conferred by section 338, and any of the powers conferred on an Appellate Court by sections 195, 423, 426, 427 and 428 of the Code of Criminal Procedure, 1898 and may also enhance any sentence : Provided that nothing in this Chapter shall be deemed to authorise the Commissioner to set aside the finding on any question of fact of a Council of Elders, where such finding has been accepted by the Deputy Commissioner, unless he is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice." It appears that in an earlier writ petition on a similar question, a Division Bench of the High Court at Peshawar had entered into the vires of the Commissioner's order, and had set aside his direction for a fresh trial on the ground that he did not come to a conclusion in the very words of the proviso. The relevant passage reads as follows :‑ "unless the Commissioner is of the view required by the section he is barred from setting aside a finding of fact, and (that) such an order unless based on such an opinion, is bad in law." The learned Judges of the Full Bench observed that the matter was one of the opinion entertained in fact by the Commis sioner and was not to be examined on the basis of whether the words he employed in his order were precisely those of the proviso. They went further and supported the action of the Commissioner by saying that if it were to be held that by non‑use of these words, he (the Commissioner) displayed ignorance or lack of observation in respect of or deliberately violated the proviso to section 50, they (the learned Judges) were "certainly not prepared to impute such conduct to an officer to whom Government has entrusted revisional powers under the F C. R." In the present case, the learned Judges of the Division Bench have gone even further. They have in effect, issued in relation to the Commissioner's order, a certificate of compliance with the requirements of justice, as understood in the ordinary Courts. It is in this sense that they have commended the action of the Commissioner, in pointing out that the jirga had not referred to the testimony of the eye‑witnesses, and had not questioned the adequacy of the motive shown and that only three members instead of the whole four had inspected the spot, thus commit ting "material irregularity". Following the decision, in the case of Firdaus, they held that failure to use the very words of the proviso did not vitiate the Commissioner's order, and they accord ingly dismissed the petition. In our opinion they should have dismissed the petition on a totally different ground, namely, that sitting as Superior Judges at the apex of a system of administration of justice which is based upon meticulous ascertainment of facts by due process, and the application of law thereto, they have no concern whatsoever with the kind of proceeding which took place before the jirga in this case, which, we believe, is taking place before a multitude of other jirgas all over the West Pakistan Province, and which, we are informed it is intended should soon become universal. The mere existence of the words in the proviso to section 50, viz., "material irregularity or defect in the pro ceedings" and "a miscarriage of justice" should serve to mislead no one, least of all, one of the ordinary Courts of justice. For by expression, the whole method of ascertainment of facts before a jirga and the application of law to those facts is rigoriously kept free of every kind of rule or regulation that might savour of due process. There is no rule, or even requirement, of evalua tion of evidence. In this case itself, the jirga passed on its opinion on the case, without even mentioning the kind of evidence led before it; the Deputy Commissioner allowed some indica tion of this to creep into his order, but this was completely ignored by the Commissioner and the result is that, while the purpose of each order is clear, the reasons remain, in a judicial sense, obscure, and thus incapable of review, by an ordinary Court of law. As far back as the year 1954, the Federal Court of Pakistan attempted, in a considered judgment in cases also arising out of orders of a Commissioner passed in revision under section 49, Frontier Crimes Regulation, to indicate how great was the difference in category between justice, as administered in the ordinary Courts, and that which the provisions of the F. C. R. were designed to purvey. The judgment is cited under the name of Samundar (1954 F C R 235=P L D 1954 F C 228). The Federal Court was dealing with petitions for special leave to appeal against a Commissioner's orders in revision, and the following opinions of a general character were expressed, viz : -- (1) "It is to be noticed that under section 11 of the Regula tion a particular official, namely the Deputy Commissioner is authorised to refer a case to the Council of Elders so that it may after making enquiries, such as may be necessary, submit its finding to the Deputy Commissioner, who thereupon, if he accepts a finding of guilty can convict and pass proper sentence (section 12) subject to revision by the Commissioner (section 50). It is evident that an order of the above nature cannot be regarded as having been made judicially by a Court of law. The Deputy Commissioner and the Commis sioner in this respect appear to have been mentioned in the Regulation merely as persona designata and not as judiciary. The conviction and the sentences in question, therefore, cannot be treated as made in the course of performance of the normal duty of administration of justice in a litis contestatio. These orders are merely executive or administrative orders which have been made with a view to extirpating a social evil and consequently the Courts cannot enquire into the validity of the finding of the Council of Elders or the orders of the Deputy Commissioner confirmed in revision by the Commissioner. Furthermore the jurisdiction of the Courts seems to have been clearly and expressly barred by section 60 of the Regulation. "S.

60. Except as therein otherwise provided no decision, decree, sentence, or order given, passed or made, or act done, under Chapter III, Chapter IV, Chapter V, or Chapter VI, shall be called in question in, or set aside by, any Civil or Criminal Court." (per Akram. J.) From the judgment of Cornelius, J., (with whom Abdur Rashid, C. J., and Shahabuddin, J.) agreed : -- (2) "On a careful consideration of the statutory provisions, and the procedure actually followed in enquiries of this nature, I am satisfied that, if the ascertainment of the commission of an act, falling within one or more of the definitions of offences contained in the Penal Code, by the mode prescribed in section 11, Frontier Crimes Regulation can be regarded as a mode of justice at all, it is certainly not such a mode as is operated through the ordinary Courts of justice acting in accordance with the law of procedure and of evidence, but is rather to be assimilated to, and included among, the agencies of the general administration." (3) "By the proviso to section 50 of the Regulation, the Com missioner is debarred from interfering with a finding of fact recorded by a jirga, which has been accepted by the Deputy Commissioner, "unless he is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice". In the absence of any rule, the ascertainment of material irregularity or defect perhaps in cases where there has been no enquiry at all, or the accused person has not been heard at all, would vary according to the opinion of the particular Commissioner in relation to each particular case, and consequently there is no scope for imposing any specific measure of regularity upon the proceedings of jirgas, with the aid of section

50. Nor does the second provision furnish any scope for development of a rule in this respect. There being no regular proce dure, such as is laid down in the Criminal Procedure Code for the preservation of strict impartially and fairplay between the prosecutor and the accused, the mere avoidance of a proceeding on the discovery of a procedure which is in itself likely "to occasion a miscarriage of justice" cannot be said to furnish adequate scope for enforcing the rule of equal oppor tunity to both sides". (4) "The form of procedure being 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 recognised 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 production 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 jirgas. In these very cases, the jirga has declared that it held "open and secret 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." (5) "It is likely that some, and it may be a considerable portion of the evidence which satisfied the jirga was received ex parte, and thus without cross‑examination. The statement that "open and secret enquiries" were made at Lahore clearly suggests the possibility that such questioning was carried on in the absence of the accused persons. Moreover, information gathered by putting questions in open assembly can never have the quality of judicial evidence, nor can information obtained by secret investigation be so regarded." It was pointed out that jirgas were merely advisory bodies, as the power of decision was vested in the Deputy Commissioner, who is not empowered by law to see or hear either the accused or the witnesses, and it was observed as follows :‑- "Decisions of this nature are common enough on the admi nistrative side, but they are obnoxious to all recognised modern principles governing the dispensation of justice. In such circumstances, it is impossible to preserve public confi dence in the justness of the decision. That may be of secondary importance to an administrative agency, but it is of permanent importance to a Court of justice. The mere fact that a revision is permitted obviously does not remedy the situation in this respect." The opinion was expressed that the proceedings under the F. C. R. which had taken place were‑ "not to be regarded as proceedings in justice, but that they are from every point of view to be regarded as proceedings before an administrative agency, specially provided for the settlement of criminal causes, and specifically adapted to the conditions prevailing in frontier districts, at any rate at the time when the Regulation was enacted". Reference was made to the case of Moses v. Parker where in refusing leave to appeal against a decision of the Supreme Court of Tasmania, in a special jurisdiction which by statute relieved the Supreme Court "from all rules of law and all technicalities and legal forms", the Judicial Committee said :

"The Court is to be guided by equity and good conscience and the best evidence. So were the Commissioners. So every public officer ought to be. But they are expressly exonerated from all rules of law and equity, and all legal forms. How then can the propriety of their decision be tested on appeal? What are the canons by which this Board is to be guided in advising Her Majesty whether the Supreme Court is right or wrong ? It seems almost impossible that decision can be varied except by reference to some rule ; whereas the Court making them is free from rules. If appeals were allowed, the certain result would be to establish some system of rules; and that is the very thing from which the Tasmanian Legislature has desired to leave the Supreme Court free and unfettered in each case." The case of Samundar was placed before the learned Judges of the Full Bench which decided the case of Firdaus. The latter case arose in the writ jurisdiction, whereas that of Samundar was dealt with in the high jurisdiction of the Federal Court to grant leave to appeal from judicial and quasi judicial tribunals. Yet, in Samundar's case, it was observed that "in determining whether a particular jurisdiction attracts the Crown's preroga tive, it is the substance and not the appearance which would govern the decision", and the relief sought, in the present case, as well as in the case of Firdaus is also relief in the prerogative, i.e., in exercise of the sovereign power of dispensing justice, which, in the British system, as well as our own, now devolves upon the Superior Courts. But, it is evident that the Superior Courts are incapable of dispensing justice, by way of exercising a supervisory or corrective jurisdiction, when the agency to be supervised or corrected is an administrative agency, which is not governed by any rules of procedure or of evidence, which is protected from interference by "any Civil or Criminal Court" by the express wording of the Regulation, and of which it can truly be said, as was said in the case from Tasmania, that the Legislature has been at great pains to keep it "free and unfettered in each case" from any "system of rules". It is not by chance that the jirga system, which has operated in the tribal areas since time immemorial, and on a regular basis, under the Regulation, for over 60 years, has produced no corpus juris. Each case is decided ad hoc, and all the orders in such cases coming before this Court display a very minimum of statement as to the evidence, and a complete absence of reasons for any conclusion reached of guilt or otherwise. In these circumstances, it should be obvious that for the Superior Courts to interfere, whether by approval or otherwise, with the operation of the system in any case, once a case is competently drawn into the system, would be a violation of the legislative intention. All action, in the writ jurisdiction, should be confined to action in limine, that is to say, in assertion of the jurisdiction of the ordinary Courts, and in vindication of the law, to scrutinise the process by which the case, if there be one, has been, or is sought to be, diverted into the ambit of the jirga system. If the legal requisites are satisfied, that is the last contact which the Superior Courts can retain with the case, viz., by making such a declaration. All other processes taken in the disposal of the case, within the jirga system, are outside the purview of the Courts, in any of their jurisdiction. The reference to section 49 of the Regulation to certain sections of the Criminal Procedure Code is to be regarded in the nature of a direction to the Commissioner limiting the extent of his powers, without in any way importing any power in the High Court either under the Code, or in certiorari, to exercise control or super vision over the decisions of the Commissioner. Equally, the use of the expressions "material irregularity" and "defect in the proceedings", familiar though they are in the language of the ordinary Courts, cannot be interpreted as attracting the revisionary jurisdiction of the High Court. The reason is that where, over the entire scope of the functioning of this machinery, the develop ment of anything resembling a "system of rules" is deliberately avoided, there the expressions "material" and "irregularity" are both to be understood in a special sense, and that is a sense which is beyond the scope of comprehension, or application, by the ordinary Courts. When right procedure is not defined, the Courts can never ascertain, though the Commissioner may be able always to ascertain, what is a "defect in the proceedings". And where section 50 speaks of a "miscarriage of justice", it uses a phrase which is again familiar in the ordinary Courts, but which it would be a grave error to construe as if it carried the same meaning as in the ordinary Courts. For these Courts are accustomed to follow a meticulous procedure, expressed in words, into which has been built over centuries, every possible safeguard against deviations which might deflect or prejudice the course of justice. These procedures have been expounded asserted and maintained for a very great length of time, in an infinite variety of cases by the regular Courts, working under the ‑High Court's supervision, in the revisional jurisdiction. The ascertainment of "material irregularity", of a "material defect" and of defects such as are calculated to lead to a "miscarriage of justice" is thus reduced to an orderly, legal process governed by well‑defined principles. It may be that the intention of section 50 of the Regulation is that the Commissioner should endeavour to apply these judicial principles, although it is only too clear that with no procedural provisions to follow, and no corpus juris as a guide, the task cannot bear any resemblance to that which the Superior Courts undertake in their own jurisdic tion. The "law" of the Frontier Crimes Regulation, in relation to the punishment of crimes, is expressed to be a law of expe diency, in which, it would seem, the likely result of the case is to weigh as heavily as any other factor. Only thus is it possible to explain the extraordinary provision in section 15 that a Public Prosecutor, acting under the instructions of the Deputy Commis sioner may withdraw a case, for reference to a jirga " at any time before an order of conviction or acquittal has been made" by a Court of Session. (The italicised is ours). We have said enough to indicate that an order of a Commis sioner under section 50 of the Regulation is in no sense amen able to the writ jurisdiction of the High Court. The argument set out in the case of Samundar should have led the Full Bench of the High Court to the same result in the case of Firdaus. The learned Judges found themselves able to avoid this result by reference to a brief extract from the judgment of the Privy Council in the case of the Hubli Electricity Supply Co. Ltd. v. Province of Bombay (PLD 1948 PC 295). The Indian Electricity Act, 1910, is totally different from the Frontier Crimes Regulation, in every relevant respect, and it would be remarkable indeed if anything were said, with reference to the rights and liabilities arising out of the former Act, which could be relevant to the punishment of crime, and the ultimate supervision over the machinery of such punishment, under the Regulation. Speaking with due respect, we are unable to see that the extract from the judgment of Lord Uthwatt in the case cited was at all relevant to the case before the Full Bench. And if the Full Bench entertained the belief that a High Court in Pakistan is entitled to ignore a decision by the Federal Court of Pakistan, to the extent that it was at variance with an earlier decision of the Privy Council, it is proper that it should b made perfectly clear that such a belief is totally erroneous. I respect of cases arising in Pakistan, the jurisdiction of the Federal Court of Pakistan, was at the same level as that of the Privy Council, and any decision of the Federal Court binds all Subor dinate Courts in Pakistan, earlier decisions by the Privy Council notwithstanding. For these reasons, we dismiss this appeal. A. H. Appeal dismissed.