P L D 1962 (W (PLP)

S. A. MAHMOOD, J.‑This Bench was constituted by the Acting Chief Justice on a reference made by one of us, because of an earlier decision given in Criminal Miscellaneous No. 603 of 1961, with which the referring Judge did not agree. From a perusal of the referring order, it appears that the Full Bench has to decide the following points :‑ (i) Whether the cases which were pending in the ordinary Courts on the date of coming into force of the Frontier Crimes Regulation (West Pakistan Second Extension) Ordinance, 1960, are governed by the Law in force immediately before the aforesaid date, or whether those cases can be tried under the Frontier Crimes Regulation, 1901, as made applicable to the Mianwali district by the said Ordinance ? (2) Whether the powers under section 14 of the Frontier Crimes Regulation, 1901, can be exercised by a Deputy Commissioner in cases pending in the ordinary Courts immediately before the coming into force of the said Ordinance ? 2. The State was represented by Mr. Dilawar Mahmood, Advocate, but as the points involved in this case were of con siderable importance we requested the Advocate‑General to come and assist us. It, however, transpired that the Advocate‑General and the Additional Advocate‑General were busy in the Supreme Court and Mr. M. B. Zaman, Assistant Advocate‑General, who appeared, requested for an adjournment to enable the Advocate- General to appear himself for assisting the Court. In our opinion, considering the importance of the points involved, the request made by the Assistant Advocate‑General is reasonable and, therefore, we adjourn the hearing of this case to the 16th of October 1961. On that date, either the Advocate‑General or the Additional Advocate‑General may appear on behalf of the State to assist us. 3. It may also be pointed out that by means of the afore said Ordinance the Frontier Crimes Regulation, as applicable to the Bannu district, has been extended to the Mianwali district. We have not been shown the relevant notifications, if any, issued under subsection (4) of section 1 of the Frontier Crimes Regulation, 1901, specifying the class, or classes, to which certain provisions of this Regulation have been made applicable. It is necessary to find out the form in which this law was made applicable to the Bannu district. It would be advisable to obtain the relevant notifications and to produce them on the next date of hearing. JUDGMENT S. A. MAHMOOD, J.‑Alam Sher was murdered in village Pacca Kanjera on the night between the 29th and 30th of July 1960 and a report of the occurrence was made at Police Station Musa Khel at 7‑15 a.m., on the 30th of July 1960. In this report, Shamir, Ali and Muhammad were accused of the murder. On the 20th of September 1960, a complaint was lodged by Misri alleging that Ghazi, Gaman, Muhammad and Ali had abetted the murder. Ghazi, Gaman, Muhammad and Ali petitioners were challaned under section 302 read with sections 34, 109 and 114, Pakistan Penal Code, in the Court of a Magistrate 1st Class, Mianwali, on the 27th of October 1960. Supplementary challans were put in against them on the 1st and 8th of November 1960. The Magistrate recorded some evidence on the 19th of November and 14th of December 1960. They applied for bail to the Sessions Judge, Mianwali, and were granted bail on the 5th of December 1960. By Gazette Extraordinary of West Pakistan dated the 13th of December 1960, the Frontier Crimes Regulation (West Pakistan Second Extension) Ordinance (XXXIII of 1960) was promulgated. Section 2 thereof provided that "the Frontier Crimes Regulation, 1901, as applicable to the District of Bannu is extended to the District of Mianwali." In consequence of the application of the Frontier Crimes Regulation to the District of Mianwali, the Deputy Commissioner, with reference to the Commissioner's order, directed that the case shall be tried by a Council‑of‑Elders presided over by the Additional District Magistrate, Mianwali, and specified the points for determination by the Council‑of‑Elders. Though the section of the Frontier Crimes Regulation under which the case was referred to the Council‑of‑Elders was not mentioned, the reference apparently was under section 14 of the Frontier Crimes Regulation (III of 1901), which provides as under :‑ "The powers conferred by section 11 on the Commissioner and Deputy Commissioner, respectively, may be exercised by them, in cases committed to the Court of Session, at any time before the trial before that Court has commenced, and, in cases pending before any Court inferior to the Court of Session at any time before an order of conviction or acquittal has been made." Subsection (1) of section 11 of the Frontier Crimes Regulation provides that "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 members of the Council‑of‑Elders shall, in each case, be nominated and appointed by the Deputy Commis sioner." 2. Aggrieved by the order of reference of the case pending against them in the Court of the committing Magistrate, the petitioners moved this Court by a Writ of habeas corpus under section 491‑A (e) and under section 561‑A, Criminal Procedure Code. The ground on which this petition was founded is that the order of withdrawal of the case from the committing Magis trate's Court is illegal as the Frontier Crimes Regulation, which was promulgated on the 12th of December 1960, is not retrospective in operation and cannot affect pending cases, so as to deprive the petitioners of their rights of appeal to the High Court and of representation by counsel before the Court under the Code of Criminal Procedure, which rights are the creation of statute and have not been specifically taken away. The case came up before my learned brother Jamil Hussain Rizvi, J. who came to the conclusion that as soon as the Frontier Crimes Regulation came into operation, the Deputy Commissioner became armed with authority to withdraw a pending case from the Court of a committing Magistrate and to refer ft to a Council‑of‑Elders, as the law, which merely alters the procedure, can, with perfect propriety, be made applicable to past as well as future transactions, for no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court, in which he is tried, and if an Act alters the mode of procedure, he has no other right than to proceed according to the altered mode. As, Masud Ahmad J. had taken a different view in Criminal Miscellaneous No. 603 of 1961, my learned brother referred the case to the learned Acting Chief Justice with a request that a larger Bench be constituted to decide the question involved, and the case was referred to a Full Bench. 3. My learned brother Masud Ahmad J., in Criminal Miscellaneous No. 603 of 1961, on examination of Bhai Kirpa Singh,, v. Rassaldar Ajaipal Singh and others (A I R 1928 Lah. 627), Colonial Sugar Refining Co. Ltd. v. Irving (1905 A C 369), Sardar Ali and others v. Doliluddin Ostagar (A I R 1928 Cal. 640), In re Vesudeva Samiar (A I R 1929 Mad. 381), Muhammad Ishaq v. The State (P L D 1956 S C (Pak.) 256) and Muhammad Bashir v. The Province of West Pakistan and another (P L D 1958 Lah. 853), came to the conclusion that the petitioners before him, whose cases were pending in the Courts on the 13th of December 1960, when the Ordinance came into force, could not be tried under the Frontier Crimes Regulation, 1901, and that their trials had to be held under the law which was in force in the Mianwali District prior to the date of coming into force of Ordinance. The reasons for coming to this con clusion were as follows: ‑ "If, by the Ordinance which has extended this Regulation to the Mianwali District, there had been, a change only in matters of procedure, it is obvious that that change would not have affected those cases which had been completed and closed, for instance, those in which final orders of punishment had been passed. The position regarding the law relating to substantive rights is, however, different, because unless it can be gathered from the language of the Ordinance of 1960 that that Ordinance was intended to be applied to pending cases, the right of appeal to the Sessions Judge or the High Court, which the accused had under the ordinary law and their right to be tried by the ordinary Courts of law, could not be taken away, merely because this Regulation was extended to the Mianwali District. If the intention of law‑makers had been that this change of law would also affect pending cases, they would have made the intention clear by the use of appropriate words. As the language of the Ordinance of 1960 does not indicate that it was intended to apply to those cases which were pending in the Courts when the Ordinance came into force, the necessary inference is that this change of law had no effect on pending cases and the rights, therefore, which had accrued to the accused in the matter of appeal etc., had not been taken away by this change of law." 4. Before us, Mr. Nasim Hassan, learned counsel for the petitioners, raised the following contentions :‑ (i) A person is normally to be punished according to the law as applicable when the offence was committed, i.e., under the Penal Code and the Code of Criminal Procedure as applicable on that day. (ii) A right of appeal conferred by the existing law is a vested and substantive right and unless the intention is clear, an amending Act has to be construed as preserving the existing right. The presumption is against alteration of law in respect of pending proceedings unless an intention to the contrary be clear. (iii) If two interpretations are possible, then penal statutes must be interpreted as being prospective and not retros pective. (iv) Ordinance (XXXIII of 1960) is prospective and not retrospective. It is ex‑post facto Legislation. In support of the above propositions he relied on certain authorities, which I shall notice presently. 5. That a right of appeal existing on a day on which a proceeding or lis commences or prosecution is lodged, is a vested right and that that right is governed by the law prevailing on that day and not the law prevailing on the date of its decision admits of no doubt. This principle has been firmly and authoritatively laid down. The learned Judges of the Supreme Court of Pakistan in Muhammad Ishaq v. The State, have held that "where a statute affects a substantive right, in the absence of express words or necessary intendment, it has to be construed prospectively and not retrospectively. The right of appeal in this country being the creation of a statute is a substantive right, and it can only be conferred or taken away retrospectively express words or necessary intendment". In coming to this conclusion the learned Judges relied on the Privy Council case Delhi Cloth and General Mills Co. Ltd. v. Income tax Commis sioner, Delhi and another (A I R 1927 P C 242) which in turn was based on the Colonial Sugar Refining Co. Ltd. v. Irving, which laid down the principle that "while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them ; provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders, which, when the statute came into force, were final are provisions which touch existing rights." The same view was taken in India by the Supreme Court in Garikapati veeraya v. N. Subbiah Choudhry and others (P L D 1957 S C (Ind.) 448) and it was held that the right of appeal is not a matter of procedure, but is a substantive right, that the institution of a suit carries with it 'the implication that all rights of appeal then in force are presevered to the parties thereto till the rest of the career of the suit, that the right of appeal is a vested right and exists as on and from the date the lis commences and not by the law that prevails at the date of its decision and that this vested right can be taken away only by subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. Several other Indian cases were also relied upon by the learned counsel for the petitioners, but in view of the above discussion, it is not necessary to notice them. 6. Maxwell in the book "Interpretation of Statutes" similarly states that it is a fundamental rule of English Law that no statute will be construed to have a retrospective operation unless such construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. The rule is stated thus: "No rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enact ment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. But if the language is plainly retrospective it must be so interpreted. At the same time, regard must be paid to the dominant intention." Craies on Statute Law has similarly stated that the general rule of law is that statutes are not to operate retrospectively unless there is some declared intention of the Legislature, clear or unequivocal, or unless there are some circumstances rendering it inevitable that we should take the other view, that 'the new law ought to be construed so as to interfere as little as possible with vested rights but that the presumption against the retrospectively can be rebutted by express enactment or by necessary implication from the language employed by the amending statute. He observes that sometimes the statutes, although not intended to be retrospective, will in fact have a retrospective operation. In Duke of Devonshire v. Barrow, etc. ((1877) 2 Q B D 286, 289) two persons had entered into a contract, and afterwards a statute was passed, which, according as Cockburn, C. J., said, engrafted an enactment upon existing contracts and thus operated to produce a result quite different from the original intention of the contracting parties. Thus the statute had in fact a retrospective operation. Similarly if a statute is passed which renders the performance of a contract impossible, the rule of law is that the contract is frustrated by supervening impossibility and consequently the statute in such a case operates retrospectively. Craies gives similar examples of other statutes which act retrospectively though, it is a well recognised rule that statutes should be interpreted, if possible, so as to respect vested rights. The Courts have been careful in endeavouring to protect vested rights and Judges have refused to allow statutes to have a retrospective operation. There is, however, no vested right in procedure. I dealing with these subjects apply to pending cases unless a contrary intention is expressed or clearly implied. It is a general rule, states Craies, that when the Legislature alters the right of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure, and do not extend to rights of action, for it is perfectly settled that if the Legislature forms a new procedure, that, instead of proceeding in this form or that, you should proceed in another and a different way, clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective unless there is some good reason or other why they should not be. [Gardner v. Lucas ((1878) 3 A C 582) and Rex v. Southampton Income‑taxi Commissioners ((1916) 2 K B 249)]. A statute cannot be said to have a retrospective operation, because it applies a new mode of procedure to suits commenced before it passing. Watton v. [Watton ((1866) L R I & D 227) and Attorney General v. Theobald ((1890) 24 Q B D 557)]. In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties, it will be held to apply prima facie to all action, pending as well as future. [Kimbray v. Draper ((1868) L R 3 Q B 160) and Welby v. Parker ((1916) 2 Ch. D I)]. 7. Substantive rights such as right of appeal comes into existence when a civil action is brought and not when cause of action accrues. Similarly such right accrues in criminal cases F when cognizance of an offence is taken by a court and not before, though it has been held in some cases that the right accrues with the making of an F.1. R. or the commission of the offence, but the correctness of this view is open to doubt as will appear later, but this question is of no importance in this case, because it was put in Court against the petitioners and evidence was being recorded, when the case was referred to the Council‑of- Elders. 8. Before dealing with the case in band, I may refer to some Indian cases dealing with the amendment of law in relation to pending cases. Emperor v. Fitzmaurice and another (A I R 1925 Lah. 446) is a case in which it was held that right of Europeans to be tried by Jury provided for in the Code of Criminal Procedure, 1898, was a substantive right and that though the right was taken away by the new Code, a person who had a right to be tried by Jury, when committed for trial, could not be deprived of it, it being a sub stantive right and not a mere matter of procedure. This case can well be understood on the principles laid down above. In Rajib Lochan Dhar v. Jogesh Chandra Das Gupta (A I R 1924 Cal. 983), a case against the accused under sections 408 and 477‑A of the Indian Penal Code was commenced in February 1923, section 477‑A being exclusively triable by the Court of Session, but under the amended Code of Criminal Procedure, which came into force during the pendency of the case, section 477‑A became triable by a Magistrate with first class powers. The Additional District Magistrate then made a reference to the High Court whether the case be committed to the Court of Session for trial. Greaves and Duval, JJ. held that the amendment of the law, which enabled a Magistrate, with first class powers, to try charges falling under section 477, Indian Penal Code, is a matter of procedure only, that the amended Act applied notwithstanding that the case was i commenced before the amended Act came into force, which was on 1st September 1923, and that the Magistrate had power to deal with it, and reliance was placed on the observations of Jessel, M. R. J., In re : Joseph Suche & Co., Ltd. ((1871) 1 Ch. D 49) that "it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action its enactments, unless in express terms, they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that where enactments merely affect procedure, and do not extend to right of action they have been held to apply to existing rights." Reliance was also placed on the observations of Lord Blackburn J., in Gardner v. Lucas, that "it is perfectly settled that if the Legislature intended to frame a new procedure, that, instead of proceeding in this form or that you should proceed in another and different way, clearly these bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be". Kimbray v. Draper was also referred to where Blackburn J. stated that a statute dealing with procedure applied prima facie to all actions pending as well as future. Mitter J., in Shib Nath Banerjee and others v. A. E. Porter and others (A I R 1943 Cal. 377 (S B)) dealing with the Defence of India (Amendment) Ordinance (XIV of 1943) on the question whether the Ordinance affected pending proceedings observed as follows :‑ "Cases where the statute under consideration uses no words giving its provisions retrospective operation are simple. There pending actions and proceedings would not be affected. But where the statute gives its provisions retrospective operation in express terms it would be a matter for consideration bow far the retrospective operation extended and whether pending actions. were intended to be affected by it. The question finally resolves itself into a matter of construction. In my judgment express words are not essential in order that a statute may apply to pending actions or proceedings. It is enough if that intention can be inferred, and for ascertaining the intention of the Legislature not only the meaning of words used in the enactment but also the object of the enactment must be kept in view. In fact the object of the enactment as gathered from its provisions would be a very important matter." Reliance was placed on Rex v. Southampton Income‑tax Commissioners and Quilter v. Mapleson ((1882) 9 Q B D 672). In the former case, Lord Reading, C. J., laid down "I cannot accept the contention of the applicant that an enactment can only take away vested rights of action, for which legal proceedings have been commenced, if there are in the enactment express words to that effect. There is no authority for this proposition, and I do not see why in principle it should be the law. But it is necessary that clear language should be used to make the retrospective effect applicable to proceedings commenced before the passing of the statute." In the latter case, where the statute in question did not in express terms say that its provisions were to apply to pending actions, Sir George Jessel held the enactment to be applicable to pending actions, observing that: "We must, therefore, in furtherence of the objects of the Act, hold the enactment to apply to pending proceedings unless there is something in the words to prevent our doing so." Mitter, J. also laid down the principle that if the object of an Act, which is to be gathered from the words of the enactment, itself requires that the Act should apply to pending proceedings, it will be so applied, unless there is a saving clause in the Act itself to the effect that it would not apply to pending proceedings. (The principle has a direct bearing on the question before us.) Applying this principle it was held that the Ordinance was applicable to orders of detention passed before the Ordinance was enforced. The words "no order shall be deemed to be invalid," were taken as validating all detention orders made under Rule 26 of the Defence of India Rules, even before the promulgation of the Ordinance, as the Governor‑General intended to say that no person detained under the orders made under Rule 26 was to be released on the ground that the rule was bad. 9. Two Full Bench cases dealing with Special Criminal Courts Ordinance (II of 1942) may now be cited. In Salig Ram v. Emperor (A I R 1943 All. 26), it was held that as there was nothing in the language of the Ordinance to make it retrospective, it must be taken to have prospective and not retrospective effect and that an offence committed before the Ordinance came into force could be tried in accordance therewith, if the trial commences on or after the date, on which the Ordinance was put into operation. Incidentally it may be mentioned that Iqbal Ahmad, C. J. and Collester, J., held that the Ordinance prescribed the procedure for trial o: offences and not for the commission of offences. It regulated trials irrespective of the fact as to when the offence, that was the subject of the trial, was committed. The procedure to be followed in the trial of an offender must be in accordance with the law of procedure in force on the date of the inception of the trial, and not the date of the commission of the offence, which is the relevant date according to Bajpai, J., who held that action commenced when an accused was arrested and machinery of law in the shape of a police investigation was started, and it was not necessary that the trial with all its formalities, should have commenced before a Court. I find it difficult to subscribe to the view of Bajpa, J., because the commission of offence or investigation may not lead to a prosecution; and it is the institution of the prosecution, which can confer vested rights, and not the date of the commission of the offence nor the date on which investigation commences. The institution of prosecution may be taken to be receipt of report of the police under section 170 of the Code of Criminal Procedure in cognizable cases by a Magistrate or a cognizance taken by a Magistrate under section 190, Criminal Procedure Code. The other case is Banwari Gope and others v. Emperor (A I R 1943 Pat. 18) wherein it was held that "the Ordinance cannot be given retrospective operation and is not applicable to those cases in which criminal proceedings had started before it came into force. Either the summoning of the accused‑persons or any other step which is equivalent to it must be held to mark the initiation of the criminal proceedings against him, and as these step follow automatically after a Magistrate has taken cognizance of a particular offence, it may be safely laid down that there is a criminal case against the accused‑person as soon as a Magistrate has taken cognizance". How far a statute which repeals or alters the old law can be given retrospective operation was briefly stated as follows :‑ "(1) Upon the presumption that the Legislature does not intend to enact what is unjust, every statute which takes away or impairs a vested right acquired under the existing law or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions or considerations already passed must be presumed to be intended not to have retrospective operation ; (2) if there are words in the enactment which either expressly state or necessarily imply that the statute is to be given retrospective operation, then the Act should have retrospective operation even though the consequences may appear unjust and hard ; (3) a statute is not to be construed to have a greater retrospective operation than its language renders necessary ; and (4) as no person has a vested right in any course of procedure, alterations in procedure are to be retrospective, unless there is some good reason against it." It was held that, as the criminal proceedings against the petitioners had been initiated before the Ordinance came into force, It must follow that the procedure, which should have been adopted for their trial was the procedure, which was in force at the date of the institution of the proceedings against them, because under the procedure they had a right of appeal as well as right of applying to the High Court for the revision of their convictions and sentences. Learned counsel for the petitioner relies on these cases. The case of Banoari Lal Sarma and others, who were to be tried under the special procedure laid down by the Special Criminal Courts Ordinance (II of 1942), went before the Privy Council. Their Lordships in Emperor v. Benoari Lal Sarma and others (A I R 1945 P C 48) observed as follows :‑ "It may be that as a matter of wise and well framed legisla tion it is better if circumstances permit to frame a statute in such a way that the offender may know in advance before what Court he will be brought if he is charged with a given crime ; but this is a question of policy, not of law. There is nothing, of which their Lordships are aware, in the Indian Constitution to render invalid a statute, whether passed by the Central Legislature or under the Governor‑General's emergency powers, which does not accord with this principle . . . . Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used. The learned Judges who were in the majority In the Federal Court would presumably not contest this proposition, and their Lordships rather under stand their view to be based on the conception that there is something underlying the written Constitution of India which debars the Executive Authority, though specially authorised by the statute or Ordinance to do so, from giving directions after the accused have been arrested and charged with crime as to the choice of the Court which is to try him. Their Lordships are unable to find that any such constitutional limitation is imposed. Indeed, Rowland J., points out that if it were held that where two sets of Courts exist side by side power cannot be delegated to pass an order directing that a case shall come before the Special Court and not before the Court under the Code, this would throw doubt on a long course of legislation in India where this very thing is enacted. The learned Judge cites 13 instances, and, in addition to these, refers to the direction conferred by the Army Act and by the Air Force Act upon the prescribed authority to decide in a particular case, where a Criminal Court and a Court‑martial would both have jurisdiction, before which Court the accused shall be brought for trial. There is not, of course, the slightest doubt that the Parliament of Westminster could validly enact that the choice of Courts should rest with an Executive Authority, and their Lordships are unable to discover any valid reason why the same discretion should not be conferred in India by the law‑making authority." It appears to me that the above observations of the Privy Council are pertinent to the case in hand. The other cases relied upon by the learned counsel for the petitioner and referred to above, lay down the general principles, over which there is no real conflict, but are not strictly applicable and are disting uishable. 10. Since the, petitioners' case had commenced in Court and its cognizance had been taken by a Magistrate, they had no doubt acquired a right of appeal and a right to be defended by counsel. Was that right affected or taken away by Ordinance (XXXIII of 1960) ? The answer is simple. This Ordinance did not directly affect those rights, nor was retrospective in operation. It was for this reason that my learned brother Masud Ahmad, J. held that the right of appeal had not been affected and that the petitioners had to be tried according to the law as it stood at the time of institution of the proceedings. My learned brother Jamil Hussain Rizvi, J. took the contrary view on the ground that the Frontier Crimes Regulation, which was introduced by the Ordinance gave ample power to the Deputy Commissioner to withdraw a pending case from the Court of a Magistrate and to refer it to a Council‑of‑Elders, as a law which merely alters procedure can be made applicable to past as well as future transactions, as no one has vested right in procedure. This view is amply supported by authority. Masud Ahmad, J. however, did not regard it as a matter affecting procedure, but one which affected substantive right of appeal, as under the Frontier Crimes Regulation there was no right of filing an appeal, and revision was only provided. This is the difference in the two views, which led to a conflict. 11. On the promulgation of Ordinance (XXXIII of 1960) what happened was that the Frontier Crimes Regulation, 1901, was enforced in the District of Mianwali, and it provided for an alternate Tribunal, other than the ordinary Criminal Courts set up under the Code of Criminal Procedure, for deciding the question of guilt of persons accused of offences, with authority vested in the Commissioner or the Deputy Commissioner to refer cases to it in their discretion, including cases pending in ordinary Criminal Courts. That Tribunal does not follow any rule of evidence or forms of procedure. It need not act on evidence recorded by it and may even act on private information. The accused does not even have a right of being represented by counsel before it. There is no right of appeal. A revision only is provided. The procedure to be followed is not that of a Court of justice, and is in most respects far less beneficial and harsh to the person accused of an offence (even though it may be suited to the environments) except in one respect that he may not be sentenced to death. It is not surprising, therefore, that the petitioners complain against the reference of their case to the Council‑of‑Elders, but it is not for this Court to judge the wisdom of the Legislature. I have to interpret and give effect to the law as it exists. If the law is valid and has given power of withdrawal of a case and that power can validly be exercised even in a pending case, then the exercise of the power cannot be denied, and the vested right of the accused, who is being tried by the ordinary Courts is taken away, and he can be tried by the alternate forum according to its procedure. It is not denied that Ordinance (XXXIII of 1960) and the Frontier Crimes Regulation, which it enforced with immediate effect, are valid pieces of legislation and that under section 14, Frontier Crimes Regulation, there is ample power in the Deputy Commissioner to refer a pending case to a Council‑of‑Elders. To use the words of the Privy Council there is not the slightest doubt that the Legislature can validly enact that the choice of Courts (or forum) shall rest with an Executive Authority. There are instances in the Army Act and the Air Force Act by which the prescribed authority is empowered to decide in a particular case whether a Criminal Court or a Court martial, or both, shall have jurisdiction to try the accused. The Deputy Commissioner has under section 14 of the Frontier Crimes Regulation made a choice in this case of the forum for the trial of the guilt of the petitioners. On what principle can that power be denied to him, for the power vested in him is express and explicit. It was held in Hazari Tewari v. Maktula Chaubain and another ((1931) 29 All. L J 844,) that "the choice of forum is a matter of procedure and not a sub stantive right, and that in most cases a new Act would have a retrospective effect so far as the choice of forum is concerned." In this case, Tenancy Act (III of 1926) was enforced, by which jurisdiction of a Civil Court was ousted and relief could be obtained by means of a revenue suit. It was observed that " if the Legislature has thought it fit to deprive the Civil Court of its jurisdiction to entertain suits of a particular nature, a plaintiff cannot compel the Civil Court to hear his suit merely because his cause of action had accrued before the new Act depriving the Civil Court of its jurisdiction was passed. The choice of forum Is a matter of procedure, and not a substantive right, and in most cases a new Act would have a retrospective effect, so far as the choice of forum is concerned. The analogy of a new Act not affecting a pending action does not apply." I agree with my learned brother Jamil Hussain Rizvi, J. that a law relating to .choice of forum for the trial of a criminal proceeding is a matter affecting procedure, which may well affect past transactions, if the intention be clear. There can be no K doubt in this case that the intention clearly was to affect pending cases, which are mentioned specifically in section 14, Frontier Crimines Regulation. My learned brother Masud Ahmad, J. took the contrary view because in his view Ordinance (XXXIII of 1960) did not indicate that it was intended to apply to cases pending when the Ordinance came into force, but (I say so with all respect) the effect of the operation of section 14 of the Frontier Crimes Regulation was entirely ignored. That section had the effect of enabling the Deputy Commissioner to choose the alternative Tribunal for decision of the case, with the necessary consequences that if he decided to refer the case to a Council‑of -Elders, the procedure under the F. C R. had to be followed and the rights accruing or vested in relation to trials in ordinary Courts were taken away, because the trial could not go on there. Not only the right of appeal, but also the right of representation by counsel was destroyed, as before the Council‑of‑Elders no such right existed. 12. There is no force in the contention that the amendment was applied retrospectively. It is not the Ordinance (XXXIII of 1960) but the Frontier Crimes Regulation which was utilised for making the impugned order and for this purpose It was an existing power which was exercised, though it may have affected a pending case, and thus took effect retrospectively. The order being valid, the rights of appeal, accruing to the accused by reason of prosecution of the accused having commenced, were taken away by express provision. Though it is not denied that section 14 of the Frontier Crimes Regulation gave the Deputy Commissioner the power to refer a pending case to a Council‑of -Elders it is contended that this power could only be exercised in cases instituted or commenced after the promulgation of Ordinance (XXXIII of 1960), which enforce the Frontier Crimes Regulation, and not those which were pending on that date, but this argument is not sound because its effect is to take away the power of referring pending cases to Council‑of‑Elders, and renders the provision nugatory, and such a construction is not to be adopted. The power to refer, a case to Council‑of‑Elders having been vested in the Deputy Commissioner under section 14 of the Frontier Crimes Regulation ‑and exercised by him under an existing law, namely, the Frontier Crimes Regulation, which is admittedly a valid piece of legislation, and 'the exercise of that power not being subject to any limitation as to the time of institution of proceedings, there is no doubt about the competency or validity of the order of reference of the case against the petitioners to a Council‑of‑Elders. The question in essence is the choice of forum given to the Deputy Commissioner and the Commissioner in a pending case and the exercise of power is valid, even though it may have retrospective operation in the sense that it takes away vested rights, for there is an express provision and the intention is clear. There is ample authority r for the view which I have taken in this case. 13. For the reasons given above, I am clearly of the opinion that the Deputy Commissioner had the power under section 14 of the Frontier Crimes Regulation, promulgated by Ordinance (XXXIII of 1960), to refer a case pending since before the enforcement of the Ordinance to a Council‑of‑Elders. The question of guilt or innocence of the petitioners could thus be referred for decision to a Counsel‑of‑Elders and the order is valid. I, therefore, dismiss this petition as without force. J. H. Rizvi, J.‑I had expressed my views in my order of reference, I entirely agree with the above order. NAZIR AHMAD MAHMOOD, J.‑I agree. A.H. Petition dismissed.