P L D 1963 (W (PLP)

'' (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." He also relied upon P L D 1950 Pesh. 80, regarding the jurisdiction of this Court to go into the matter.

11. We first address ourselves to point No. 1, namely, whether the impugned order demanding security is saved by section 4 of the General Clauses Act, 1956, which has been kept alive by section 34(2) of the Criminal Law (Amendment) Act, 1963. It will be convenient here to reproduce section 4 of the West Pakistan General Clauses Act of 1956, which runs :‑ "4 (1) Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not‑ (a) revive anything not in force or existing at the time of which the repeal takes effect ; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment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 had not been passed . . . . ."

12. Mr. Mahmood Ali Qasuri, the learned counsel for the petitioners, urged that none of the clauses of section 4 of the General Clauses Act was applicable, because clause (b) says that it shall not affect the previous operation of any enactment so repealed or anything done or suffered there under. The counsel says that this clause is not applicable because it did not say "continuing to suffer". Clause (c) was not applicable, as it was meant for civil liability and not for criminal. It relates to right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. Liability means to pay, to receive, to deliver goods. The word acquired or accrued is not used in the context of Criminal Act, because punishment cannot be acquired or accrued or incurred. In the opinion of the learned counsel for the petitioners, clause (d) which prima facie seems to be applicable to the case also does not apply, because im prisonment in lieu of security is neither a "penalty" nor "forfeiture" nor "punishment" incurred in respect of any offence committed against any enactment so repealed. The learned counsel sought reliance on A I R 1950 Hyd. 20 to show that imprisonment in default of fine was not punishment. He further relied upon I L R 7 All. 67 and I L R 8 Cal. 331, that custody for security is not an offence. The same view was taken in I L R 31 Mad. 515, 1 L R 37 Bom. 178, 14 P R 1895, A I R 1921 All. 281 and A I R 1921 Sind

96. The counsel for the petitioners contended that if security proceeding is not an offence, then it cannot be saved by any clauses of section 4 of the West Pakistan General Clauses Act, 1956.

13. The learned Additional Advocate‑General took his stand on clause (b) of section 4 of the General Clauses Act. The effect of previous operation, i.e., proceedings under section 40, F. C. R., was demand of security and in default three years' imprisonment. If previous operation is not affected, then demand for security is not affected and it stands, and detention on failure to furnish security also stands. "Anything duly done" under the repealed enactment is not duly affected. Order demanding security under the repealed enactment of the F. C. R. is an act "duly done" under the F. C. R. and, therefore, it will not be affected. He contended that the petitioners incurred the liability to stiffer the imprisonment on their failure to furnish security.

14. The learned Additional Advocate‑General contended that if the words in section 44 (1), F. C. R. "where a person ordered to give security under section 40 or section 41 does not give security on or before the date on which the period for which the security is to be given commences, he shall be committed to prison, or, if be is already in prison, be detained in prison until that period expires, or until within that period he furnishes the required security" sere to be held imprisonment in the ordinary sense, then clause (d) of section 4 of the General Clauses Act shall be applicable, because the commitment to jail or detention in jail would be punishment. In support of the proposition that commitment to jail or detention in jail amounts to punishment, the learned Additional Advocate‑General relied upon proviso 2 to section 397, Cr. P. C., which lays down :‑ . "Provided, further, that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately".

15. Relying upon this proviso, the learned Additional Advocate‑General contended that from the very words of this proviso, it was clear that the sentence of imprisonment was provided for default of furnishing security. Reliance was also placed on Emperor v. Tula Khan (I L R 30 page (sic) 334), where it was held by a Full Bench that "where a person is ordered by a Magistrate to be detained in prison" pending the orders of the Sessions Judge under section 123 of the Code of Criminal Procedure such person must be considered as a person undergoing a sentence of imprisonment and not merely as an under‑trial prisoner detained in custody. An order for imprisonment on failure to furnish security for good behaviour is a "sentence within the meaning of section 397 of the Code of Criminal Procedure."

16. From the above discussion it is obvious that clauses (b), (c) and (d) of section 4 of the West Pakistan General Clauses Act of 1956, are applicable and any order passed in regard to the furnishing of the security and on failure to furnish security, the order of imprisonment cannot be called into question. The view taken by the learned Additional Advocate-General that section 4 of the General Clauses Act has been made applicable by section 34(2) of the Criminal Law (Amendment) Act of 1963 is supported by Showkat‑un‑Nissa Begum and others v. State of Hyderabad (A I R 1950 Hyd. 20), relied upon by the petitioners, but instead of advancing their case, this authority clinches the matter against them as it clearly lays down that section 6 of the Indian General Clauses Act (corresponding to section 4 of the West Pakistan General Clauses Act, 1956), expressly refers to the repeal of an Act and it would be applied to an Act which becomes void. It was held that "section G (b) does not apply to preventive detentions. Preventive detention as against punitive detention requires the existence of the law authorizing the detention and the General Clauses Act can be invoked only when the law under which the detention has been ordered is repealed and the repealing Act makes a provision for its continuance But when the law becomes void and (sic) detention becomes illegal. When section 6, General Clauses Act, expressly refers to the effect of a repeal of an Act, it cannot be applied to an Act which becomes void. For some purposes `repeal' and `being void' may be the same, but for the purposes of the General Clauses Act the word `repeal' has a special significance. The word `repeal' connotes the existence of a repealing Act or, the abrogation of one Act by another. In the General Clauses Act the word `void' cannot be read where the word `repeal' is expressly used.

17. There is no force in the second point raised by the counsel for the petitioners to the effect that the impugned orders were bad in absence of order of confirmation of the Commissioner, because the order of detention was in excess of one year. It will be manifest from the reading of section 40 (1) of the F. C. R. that the Deputy Commissioner and the Commissioner have concurrent jurisdiction, as both of them have been authorised by this section, to require a person to furnish security and in default to sentence him for such period not over three years.

18. Moreover, the provisions of section 123, Cr. P. C. requiring confirmation by the Commissioner of the order of the Deputy Commissioner in excess of one year does not arise, because the said provision is inconsistent with the specific provisions of section 47(2) of the F. C. R., which in very clear terms states that the provisions of the said Chapters (VIII and XLII) of the Code of Criminal Procedure, 1898, shall, so far a they are consistent therewith, be applicable to every proceeding under this Chapter relating to the taking of the security. In other words, any provision under the Criminal Procedure Code which runs counter to the provisions of the Frontier Crimes Regulation cannot be held applicable to the proceedings under the F. C. R.

19. Commenting on certain individual cases, the petitioners' counsel first picked up the case of Ajab Khan son of Saadullah, which is on file No. 43/6, in which a complaint was drafted by Wasifullah, S. H. O., but the said S. H. O. was not examined by the Deputy Commissioner as a witness. The entire evidence consists of the solitary statement of Muhammad Sadiq, A. S. I., who stated nothing beyond proving the complaint to be in the handwriting of Wasifullah, S H. O. The same procedure was adopted in the case of Zaidullah, on file No. 44/6 decided on 16‑7‑1961, in which the complaint by Wasifullah, S. H. O. was proved from the mouth of Muhammad Sadiq, P. W. The state ment of Muhammad Akbar, S. H O., who was examined in file No. 105/6, in the case of Sheikh Muhammad Jabeen of village Sheikh Kili, does not bring the offence, according to the contention of the petitioners' counsel, within the purview of section 40, F. C. R., because beyond stating that the said petitioner was a strong worker of N. A. P. and propagating the cause of his party in the village, he stated nothing more. 19‑A After going through the record and hearing the learned counsel for the petitioners and the learned Additional Advocate -General at length, we are of the opinion that this Court has no jurisdiction to entertain the habeas corpus petitions arising out of proceedings under section 40, F. C. R., unless it is established from the record that the Deputy Commissioner had no powers to initiate proceedings under section 40, F. C. R. To decide this question, we have to look into the allegations made against the petitioners on the basis of complaints and we are not expected to look into the evidence and decide whether the material before the Deputy Commissioner was sufficient or not to sustain the impugned orders.

20. It is well‑established principle of law that in petitions under section 491, Criminal Procedure Code, the order passed by the Deputy Commissioner under the F. C. R. can be successfully assailed only when it is shown that the Deputy Commissioner had p no jurisdiction to initiate proceedings and once it is shown that he had such jurisdiction, our jurisdiction to call into question such proceedings comes to an end and we cannot look into the sufficiency or insufficiency of the evidence. In support of this view, we rely on Muhammad Akram and others v. The State (P L D 1963 S C, 373), wherein Cornelius, C. J., at page 380 while dealing with the very same subject summed up the discussion thus:‑ 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 scrutinize 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, there 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.

21. Judging the instant cases in the light of the authority cited above, we proceed to examine the question whether in the complaints lodged in these cases, a case under section 40, F. C. R. has been made out to empower the Deputy Commis sioner to initiate proceedings under the above‑mentioned section. The plain reading of the complaint Exh. P. A. on file No. 43/6 of 1961‑State v. Ajab Khan‑would show that action was sought to be taken under section 40, F. C. R. on the follow ing allegations :‑ (1) That he was propagating in favour of Pukhtunistan at the instance of Afghan Government. (2) As a result of which there was imminent danger of blood‑shed and murders. The same allegations are made out in almost all the complaints against the petitioners. These allegations in our view clearly come within the mischief of section 40, F. C. R., which as already indicated empowers the Deputy Commissioner to take action if he is of the opinion that it is necessary for the purpose of preventing; murder, or culpable homicide not amounting to murder, or the dissemination of sedition. To repeat, in all these petitions, there are categorical allegations against the petitioners that they are disseminating sedition and there was imminent danger of blood‑shed and murders.

22. Having held that the Deputy Commissioner had the jurisdiction to initiate proceedings in view of the rule enunciated in the aforesaid Supreme Court ruling, our jurisdiction to go into the merits of the case is completely ousted.

23. For the foregoing reasons, we‑ dismiss the habeas corpus petitions. K. B. A. Petitions dismissed.