P (PLP)

Originally be was detained in custody outside the limits of the appellate criminal jurisdiction of this Court, and while he was so detained an application was made on his behalf by one S. Bismillah Shah under section 491 Criminal Procedure Code, praying that the detention of Pir Sahib of. Zakori Sharif was illegal and improper and he should, therefore, be set at liberty. This application was dismissed by me on the 11th of February 1950, on the ground that this Court had no jurisdiction to entertain the application of a detinue, who was not detained within the limits of its appellate criminal jurisdiction. It appears that Pir Sahib of Zakori Sharif has since been transferred to some jail in the North‑West Frontier Province. Mr. Fazal Haq Shaida M.A., who calls himself a joint Secretary of the Provincial Awami League N.‑W. F. P., has put in this application under section 491 Criminal Procedure Code, praying that Fir Sahib of Zakori Sharif be directed to be produced before this Court and set at liberty, or an inquiry made into tile propriety and legality of his detention, and that he should be ordered to be proceeded with according to law. In the body of the application it is alleged that Pir Sahib of Zakori Sharif was a very great supporter of the late Qaid‑i‑Azani, and that it was due to his efforts that the referendum: resulted in favour of Pakistan in this Province. It is also alleged that ever since the death of the Father of Nation, Fir Sahib of Zakori Sharif had noticed dictatoria. and anti‑democratic tendencies in the policy and programme of Qayuni‑Ministry, and lie had, therefore raised his voice against the same fearing that if the matters were not mended in due course the irresponsible manner in which the Hon'ble Chief Minister was creating dissentions amongst the various sections of the people, and the ruthless way in which he was suppressing civil liberties and tile unconstitutional methods he was pursuing to keep the members of tile Assembly under his thumb, might shake the confidence of the people in the State and weaken its foundations. It is further alleged in the application that Hon'ble the Chief Minister N. W. F. P. in order to kill the opposition at its. inception directed all the Deputy Commissioners in the North‑West Frontier Province to harass the leaders of the movement and put them behind the bars. It is also asserted in the application that in compliance with the said directive of Hon'ble the Chief Minister the Deputy Commissioner Dera Ismail Khan, arrested Pir Sahib of Zakori Sharif under section 30 Frontier Crimes Regulation, and passed the order which according to the application was illegal and improper. The application is supported by an affidavit in which .it is stated that the detention of Pir Sahib of Zakori Sharif was, mala fide outside the scope of the Frontier Crimes Regulation and for a collateral purpose, to with the killing of the opposition to the present ministry, and, therefore; is a fraud on the statute. It is further stated to the affidavit that the detention of Pir Sahib of Zakori Sharif was ordered to force ‑him back in the party of Hon ble the‑Chief Minster, arid to shut his mouth so‑that he may not 'expose the irregular and despotic conduct of the ministry in power. Mr. Suhrawardi, the learned counsel, appearing for the applicant, has argued the cast‑ at some length. . He contended that the Deputy Commissioner had no material' to attract the jurisdiction under section 40 Frontier Crimes Regulation. He further submitted that the Deputy Commissioner while binding down Pir Sahib of Zakori Sharif under section 40 Frontier Crimes Regulation, has taken into consideration, extrinsic evidence, which he was not entitled to do under the' law. 'He next argued that there was no evidence produced in the Court of the Deputy Commissioner, which might have entitled him to form an opinion that it was necessary to bind down Pir Sahib of Zakori Sharif for the purposes of preventing the dissemination of sedition. Under subsection (2) of section 40 Frontier Crimes Regulation tire Deputy Commissioner may make an order requiring a person to execute a bond for good behavior, or for keeping the peace, with or without sureties under its subsection (1), on the re‑commendation of a Council of Elders or after inquiry as provided in section 42 Frontier Crimes Regulation. Under section 42 an inquiry can be conducted so far as it pray be necessary out of Court. The Deputy' Commissioner, however, before he requires a person to execute a bond ‑has got' to give him an opportunity of showing cause in Court why a bond should not be required, and of having his witnesses examined, and of cross‑examining any witness rot called by himself, who may testify to the necessity or otherwise of the execution of a bond. In the case in question the jurisdiction of the Deputy Commissioner was attracted no sooner a report was made .to him by the Police on the 9th of June 1949, that it was necessary to bind down Pir Sahip of Zakori Sharif, in order to prevent him from disseminating sedition. It was said in the report that Pir Sahib of Zakori Sharif had arranged a public meeting for the 11th, 12h and 13th, of June 1949, and in view of what he had said in a public meeting organized by him on the 31st of May 1949, it was likely that he may disseminate sedition: It was alleged .in the report that on 31st May, 1949 eight Resolutions had been passed in the public meeting, expressing hatred towards the Provincial Govern ment. The Deputy Commissioner; as has already been observed in the beginning of this judgment, gave notice to Pir Sahib of Zakori Sbarif and then examined two prosecution witnesses, namely, Karim Jan A.O , C.I.D., Dera Ismail Khan, and Saleh Muhammad Constable on Special duty. Pir Sahib of Zakori Sharif was given full opportunity to cross‑examine these witnesses. The prosecution also produced a pamphlet of 16 pages circulated by Pir Sahib of Zakori Sharif. He was then allowed to produce defence evidence, and he actually produced five persons as defence witnesses. On the material before him the Deputy Commissioner came to the following conclusions : " It may be true that the accused has undergone some sacrifices or that he has made efforts in the cause of Pakistan but we have to see the state of affairs as it is at present. The accused has associated himself with a movement which is definitely anti‑Government and his speeches, as already referred to, are anti‑Pakistan. He does not call Pakistan an Islamic State in the real sense. He thinks that the British Government was better .than the Pakistan Government ; that the present Frontier Government is against the interests of Musalmans ; and that the Pakistan Government have decided to stay for some years more under the shadow of the British. These statements are definitely such as are likely to bring the existing Government into hatred and contempt and to occasion a breach of the peace. The meetings fixed by him for 11th, 12th and 13th are intended to be used for the dissemination of sedition. The accused has himself admitted in his statement that the pamphlet Exhibit P. A. was written by him and he has also admitted that he remained Imam throughout when the resolu tions referred to above were passed in the mosque. Though the 3efence witnesses Sardar Abdul Abad Khan and Sahibzada Abdul Jalil, cousin of the accused, deny that the speech alleged by the prosecution was made or the resolutions alleged by the prosecution were moved, they admit that they have not kept any written note of the proceedings of ‑ the meetings. Their oral evidence, therefore, cannot rebute the contemporary record of the proceedings produced by the prosecution." The above finding of the Deputy Commissioner was based on the evidence produced before him. . No extrinsic evidence seems to have been taken into consideration by the Deputy Commissioner in passing the above order, but even if it was, it is permissible under section 42 (1) Frontier Crimes Regulation. The question whether the Deputy Commissioner could on the material before him form an opinion that it was necessary for the purpose of preventing the dissemination of sedition by Pir Sahib of Zakori Sharif to ‑require him to execute a bond, in my view, cannot be gone into by this Court. Under section 60 Frontier Crimes Regulation all Civil and Criminal Courts are disabled to set aside or question the orders passed under the Frontier Crimes' Regulation. Under this enactment, peculiar though it may be, Special Tribunals and Officers are appointed to den? with certain questions and persons specified in the Regulation itself. The orders or the findings of those Special Tribunals and officers are revisable under section 49 by the Commissioner alone appointed under the Regulation. This Court cannot attract to itself the jurisdiction to question those findings and orders, except. when there is a complete absence of jurisdiction. This was the view which was taken by a Bench of this Court in a case Khanimullah and another v. Emperor, reported to 1947 Peshawar Law journal page 19, wherein the following was held :‑‑ "In view of section 60, Frontier Crimes Regulation, an order passed under Chapter III of the Regulation cannot be called in question in any Criminal Court except as provided by the Regulation unless it can be shown that it was without jurisdic tion. The Commissioner alone has power under section 49 of the Regulation to revise such orders. Where, therefore, the Deputy Commissioner has the jurisdiction to pass an order under Chapter III, it cannot be called in question in the High Court and the detention of the accused in pursuance of such order cannot be held to be illegal so as to call for action under section 491." In the case before me there was sufficient material entitling the Deputy Commissioner to pass an order under section 40 Frontier Crimes Regulation. It was argued by Mr. Suhrawardi that the Deputy Commis sioner had no jurisdiction to hold that it was necessary for the prevention of dissemination of sedition to bind down Pir Sahib of Zakori Sharif under section 40 Frontier Crimes Regulation, because whatever the latter stated was correct. He submitted that Pakistan was still within the British Commonwealth and, therefore, Pir Sahib of Zakori. was not wrong when he said that the Pakistan Government had decided to stay for some years more under the shadow of the British. He further contended r that all that Pir Sahib of Zakori Sharif stated was that so long as Quranic law was not enforced in Pakistan it could not be called an Islamic State, and that this was also correct. It is not necessary for me to go into the question whether what Pit Sahib of Zakori stated was correct or not. Be that as it may: I am of the opinion that the mere fact that the Deputy Commissioner on certain so‑called true statements made by Pit Sahib of Zakori Sharif came to the conclusion that it was necessary to require him to execute a bond does not amount to the absence of jurisdiction, so as to attract the jurisdiction of this Court to act under section 491 Criminal Procedure Code. Lastly it was argued that the arrest and the subsequent detention of Pir Sahib of Zakori Sharif was not bonafide, inasmuch as it was the outcome of the directive of Hon'ble the Chief Minister to the Deputy Commissioner to harass the leaders of the Awami Muslim League Movement and to put them behind the bars. It‑ was further contended that Pir Sahib of Zakori Sharif was arrested under orders of Hon'ble the Chief Minister in order to kill the opposition to the arbitrary methods of the present Ministry and to compel him to go back to the Chief Minister's party. I have very thorughly perused the file of the Deputy Commissioner in section 40 F. C. R. proceedings and nowhere have I found any directive given by Hon'ble the Chief Minister to the Deputy Commissioner Dera Ismail Khan, nor is there any material on that record to justify the conclusion that Pir Sahib of Zakori Sharif was arrested, or proceedings under section 40 Frontier Crimes Regulation were taken against him at the instance of Hon'ble the Chief Minister. Pir Sahib of Zakori Sharif was twice examined by, the Deputy Commissioner and in none of those two statements did he say that the proceedings were initiated against him at the instance or under the directive of Hon'ble the Chief Minister, much less that they were launched on account of the fact that Hon'ble the Chief Minister wanted him to go back to his party, or to gag his mouth. In my view Pir Sahib of Zakori Sharif, was the only person, who was in a position to say whether his arrest and subsequent detention was male fide or bona fide. Learned counsel for the petitioner has put up a very novel argument before me that on this point the affidavit of Mr. Shaida, the applicant, should be accepted as correct until it is contradicted by a counter‑affidavit of Hon'ble the Chief Minister: Mr. Shiada is in no way connected with Pir Sahib of Zakori Sharif except that he is the Joint Secretary of an organization of which perhaps the Pit Sahib is a member. Pir Sahib of Zakori Sharif was ordered on the 12th o: June 1940, to execute a bond in Rs.30,000 with fifteen sureties for three years under section 40 Frontier Crimes Regulation. It was on the19th of December 1949, that for the first tinge one S. Bismillah Shah put in an application imputing motives to Hon'ble the Chief Minister. The affidavit which was attached with that application was incomplete and vague. On the 23rd of June 1950 i.e., after over a year Mr. Shaida has again come forward c actins doubt on the integrity and honesty of Hon'ble the Chief Minister. Pir Sahib of Zakori Sharif it appeals is still reluctant to make such an allegation. It may be that Mr, Shaiday who seems to be a politician and who admittedly, belongs to the Awami Muslim League a political organization formed against the Government established by law, has put in has affidavit out of same political motives. In any case, its the absence of, any of it by Pir Sahib of Zakori Sharif, I am not prepared to, attach any importance to the affidavit put in by Mr. Shaida. I, therefore, hold that there is no proof on this record to show that the order passed by the Deputy Commis sioner under section 40 Frontier Crimes Regulation was mala fide, and, thus, was a fraud on, the Statute. Consequently I see no reason to issue a rule nisi and reject the application as without substance. Order announced. K.M.A./A.H. Petition dismissed,