P L D 1956 (W (PLP)

"(2) Every person who is arrested and detained it custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest, exclud ing the time necessary for the journey from the place of arrest to the Court of the Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate." A trial under the Frontier Crimes Regulation takes place in the following manner. Under section 11, "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 Courts mentioned in section 6 of the Code of Criminal Procedure are the ordinary criminal Courts and it is in respect of these Courts that section 340 of the Code provides for defence by a pleader as of right. It is, therefore, inherent in section 11 (1) F. C. R., that an accused person cannot be defended by counsel as of right, and it is not denied that trials under the Regulation are held without the aid of counsel. in fact, the licence which a practitioner obtains under the Legal Practitioners Act entitles him to appear only in Court, civil, criminal and revenue, and in revenue offices, and consequently he cannot appear before a Council of Elders unless the Council is defined in the Regulation as a criminal Court. Although there is a green book of instructions which says, among other things, that the accused should be present before the Council of Elders at all stages of the trial, we are not sure that a contrary practice is not prevalent and is not observed in most cases; and this is not contrary to the Regulation, which merely requires that the Council should "come to a finding" on the question of guilt or innocence of any person "after such inquiry as may be necessary and after hearing the accused person" The Regulation will be satisfied if the accused has been heard once. On receipt of the finding, the Deputy Commissioner may convict, acquit or discharge the accused person and there is no provision that he cannot do so without hearing the accused. In practice even the Council holds what are called secret and open inquiries. It examines witnesses informally and visits the spot or its neighbourhood, often incognito, to ascertain the truth. The" very essence of a jirgah trial is that it is unencumbered by the law of evidence, the rules of procedure and the cross-examination of a legal practitioner. Such a trial so far as it relates to the presence of a counsel, is inconsistent with Article 7 of the Constitution. We do not, however, think that the Frontier Crimes Regulation has become unlawful because it does not provide for the appearance of a legal practitioner. From now on, we should treat Article 7 as a part of every law relating to trial for an offence. We shall, therefore, issue a direction that no evidence shall be heard or recorded against the accused before have been given an opportunity of defending themselves by a pleader, and. this shall be the rules in future. Even if with this restriction the jirgah trial is left with any charm, the Deputy Commissioner can continue resorting to it. The second contention of Mr. Abdul Qayyum Khan was that after the Deputy Commissioner had referred a case to the Council of Elders, the accused's detention ceased to be under "the authority of a Magistrate" a circumstance which contravened the last part of clause (2) of Article

7. The contention is based on the assumption that the Frontier. Crimes Regulation expressly uses the term Deputy Commissioner, and not District Magistrate, apparently because the District Magistrate is a criminal Court within the meaning of section 6, Criminal P. C. and, therefore, subject to the revisional Jurisdic tion of the High Court. The choice of the term Deputy Com missioner may not have been made merely to exclude the jurisdiction of the High Court. That jurisdiction could have been excluded in express terms, in the manner of section 48, which bars appeals. The Regulation was obviously intended to be an executive measure excluding judicial tribunals and a 'finding. An appeal lies to the Commissioner, but if the judicial, term used had been District Magistrate, the Commissioner would not be the proper authority for appeal. But whet ever be our conclusion on that score, we are not convinced that in dealing with a jirgah case the Deputy commissioner ceases to be a Magistrate in actual fact. Under the Code of Criminal Procedure, section 10, "in every district the Provincial Government shall appoint a Magistrate of the first class, who shall be called the District Magistrate". That clearly means there shall be one District Magistrate in every district, and the question is-apart from established practice-whether such Magistrate can be any person other than the Deputy Commissioner. Section 11 says that "whenever in consequence of the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the chief executive administration of the district, such officer shall . . . . . . exercise all the powers conferred . . . . . by this Code on the District Magistrate". This assumes that the District Magistrate held ''the chief executive administration of the district" and when the office of the former became vacant, automatically somebody succeeded to the chief executive administration, which obviously is the office of the Deputy Commissioner. In other words, the Deputy Commissioner must be the District Magistrate. So much is assumed by the Regulation, because it defines "Deputy Commissioner" in section 2 (b) as including any Magistrate of the first class appointed by the Deputy Commissioner by order in writing to exercise all or any of the functions or powers specified in the first part of the first Schedule and also any Magistrate appointed by the Provincial Govern ment to exercise all or any of such functions or powers". Therefore, whenever any person, apart from the Deputy Commissioner proper, is to be appointed to exercise the functions of the Deputy Commissioner under the Regulation, he must also be a first class Magistrate. Section 4 appears to have been made to lay further emphasis on the fact that only a Magistrate of the first class could be entrusted with this work. It may be profitably reproduced:- "4. (1) In any district in the whole or any part of which all or any of the provisions of this Regulation are for the time being in force, the Provincial Government may appoint any Magistrate or Magistrates of the first class to be an Additional District Magistrate or Additional District Magistrates, without any limit of time. "(2) Every Additional Distirct Magistrate so appointed shall have all the-ordinary powers of a District Magistrate specified in the fifth part of the third schedule to the Code of Criminal Procedure, 1898. "(3) When exercising any of the powers of a Deputy Commissioner under this Regulation, an Additional District Magistrate shall be deemed, for the purposes of this Regulation, to be the Deputy Commissioner. "(4) Every Additional District Magistrate shall exercise his powers in subordination to the District Magistrate, and in such cases or classes of cases, and within such local limits, as the District Magistrate may, by order in writing, direct". The object of subsection (1) is to appoint one or more Additional District Magistrates in places where the Regulation is in force. Under subsection (2), their powers would be the ordinary powers of a District Magistrate under the Code. The purpose of subsection (3) is somewhat identical with the definition of "Deputy Commissioner" under section 2 (b): the Additional District Magistrate, like the first class Magistrate, shall be deemed to be Deputy Commissioner when exercising powers under the Regulation. Section 4, particularly subsection (2) thereof, would be entirely unnecessary unless it was intended to make it clear that an authority acting under the Regulation must be a Magistrate. It would have been enough to define "Deputy Commissioner" as including any Officer appointed to perform the functions of a Deputy Commissioner, but in that case, and in the absence of section 4, such officer would not have the powers of a District Magistrate under the Code of Criminal Procedure. It seems clear enough that these powers were intended to be exercised if necessary. Now we may read section 3 with some appreciation:- "3. (1) The provisions of this Regulation shall take effect in cases to which they apply, notwithstanding anything in any other enactment. "(2) The powers conferred by his Regulation may be exercised in addition to any powers conferred by or under any other enactment, and, where the contrary is not expressed or implied other enactments in force in any place in which all or any of the provisions of this Regulation are for the time being in force shall, so far as may be, apply to cases dealt with in that place under this Regulation". The important point to notice in subsection (2) is that "other enactments . . . . . . shall, so far as may be, apply to cases dealt with . . . . . . under this Regulation". That is to say, unless the contrary is expressed or implied in the Regulation, other enactments must be applied, so far as they are applicable. Now the Regulation has no procedure of its own, and where it adopts a procedure contrary to the Code of Criminal Procedure, it expressly says so. The principal contrariety lies in section 11, where it excludes all classes of Courts mentioned in the Code for the purpose of "trying" the guilt or innocence of any person, and for this purpose the Council of Elders may make any sort of inquiry. Next, there are varia tions in procedure for certain specific purposes. Thus, by section 7, the provision of section 337 of the Code relating to the tender of pardon to accomplices has been so altered as to apply to all offences. Under section 38 (ii), wider powers have been given to private persons making arrest than have been provided for in section 46 of the Code by making an addition thereto. Under section 47, the provisions of the Code relating to security for keeping the peace or for good behavior and those relating to bonds have been so altered as to substitute the Commissioner for the Sessions Judge and the High Court. Under section 50, the powers of an appellate Court as provided in the Code have been conferred on the Commissioner. There are only two places where the procedure provided by the Code has been expressly adopted. The first is in section 13 (1), where the manner of enforcing sentences has been indicated to be the same as provided by the Code. The second is in section 47 (2), where the provisions of the Code relating to security proceedings and bonds "shall be applicable to every proceeding under this chapter" except that the Com missioner replaces the Sessions judge and the High Court. It is sometimes argued that the express adoption of certain specific provisions of an enactment means that the enactment as a whole is not applicable. But it may be argued with equal force that where-as in section 3-an enactment has been I made applicable as a whole, except where the contrary intention appears, 'an express application of some part of it may be merely intended to take the matter out of the pale of doubt. So much is expressly applicable, and as regards the rest, it "shall" be applicable "so far as may be". Consequently, if there is any provision in the Code, apart from the mode of trial, which can be applicable to a jirgah case, it shall be applied. If the Regulation says nothing about the detention of prisoners during jirgah trials, we may look for guidance to the Code. It should be clear that upto the stage of reference to the Council of Elders, the detention is under the authority of a Magistrate. If the reference had been by the District Magistrate, there would be no objection to detention, because the authority for detention would be still that of a Magistrate. But the reference is made by the Deputy Commissioner, and the objection is that the Deputy Commissioner is not a Magistrate when he makes the reference. The objection does not seem so formidable now, after we have seen that the scheme of the Code is to have a District Magis trate who must hold the chief executive administration of the district and that the scheme of the Regulation is to have Additional District Magistrate in plenty, in order that they should share with the Deputy Commissioner the burden of the frontier crimes. Consequently, although it is the Deputy Commissioner who refers the case to a Council of Elders, he does not, while doing so, take off his magisterial functions as if these were a pair of trousers: He does not strip himself of all other powers. He can exercise them when necessary. He even passes orders of bail while the case is pending with the jirgah. He does not say to the prisoner when referring his case "Because I am referring the case as a Deputy Com missioner, I am also detaining you as a Deputy Commissioner". The detention is, therefore, under the orders of a Magistrate and the question that remains is whether, after refer ence to jirgah, any lawful authority still exists for detention. Apart from other considerations, it would appear that such authority is inherent in the Regulation. It is implied that the accused person will be under detention while the special trial goes on, unless the Deputy Commissioner as District Magistrate releases him on bail. So long as the Regulation is not an unlawful measure, detention for its purposes will also not be unlawful, provided it has a lawful origin. Under the Code, no person who is arrested shall remain in police custody for more than twenty-four hours (section 61). During the investigation, the Magistrate may, from time to time, remand him to custody for a period not longer than fifteen days (section 167), and during the trial similar remands may be made for similar periods if the proceeding cannot be completed for any reason (section 344). In a trial under the Code, therefore, the prisoner must have an opportunity of seeing the Magistrate at least once a fortnight, and since this may not necessarily happen in a jirgah trial, one begins to think that the custody became unlawful on the sixteenth day following the reference. So far as Seventh Article goes, all it says is that detention beyond twenty-four hours shall not be without the authority of a Magistrate. It does not say at when intervals, if any, the authority should be renewed. Since a jirgah trial is not a trial under the Code, the fortnightly remand custody is not a compelling provision. What is the exact force of the provision in section 3 of the Regulation that other enactments shall apply "so far as may be"? Can this particular provision about remands apply when the accused may not appear at all before the Elders except once? And the detention being under the authority of the District Magistrate, not of the Elders, they cannot pass any order of remand. We think it would be straining the language of sect if we made fortnightly remands a part of the jirgah trial We, therefore, do not think Article 7 is infringed in this detail. We might remark that so far as the present case goes, we have examined its file and have found that invariably within fifteen days there have been periodical remand orders by a Magistrate, often the District Magistrate himself, in the manner of an ordinary trial. In a separate note, the District Magistrate of Quetta has informed us that this is invariably the practice in all jirgah trials. If this had been the practice, we would be inclined to lay emphasis, without issuing any direction on the desirability of adopting the procedure of section 344, Criminal P. C., so that the prisoner has opportunity at least once a fortnight to appear before the District Magistrate or any other Magistrate and bring his grievances, if any, to that officer's notice. Except that we issue a direction that no evidence shall be heard or recorded against the accused before they have opportunity to defend themselves by a pleader, we dismiss this petition. The parties will bear their own costs. A. H. Petition dismissed.