Updated: Saturday
September 24, 2016/AsSabt Thoul Hijjah 22, 1437/Sanivara Asvina 02, 1938, at 09:27:26 AM
P L D 1958 Supreme Court (Pak.) 533
Present: Muhammad Munir, C. J., M. Shahabuddin, A. R. Cornelius and Amiruddin Ahmad, JJ
Constitutional Criminal Appeal No. 1
of 1957, Criminal Appeal No. 24 of 1957 & Criminal Appeals Nos. 60 and 67
of 1958, decided on
Constitutional Criminal Appeal No. 1 of 1957
THE STATE.‑Appellant
Versus
DOSSO and another‑Respondents
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore dated the 9th August 1957, in Writ v. Petition No. 21 of 1957).
Criminal Appeal No. 24 of 1957
SABZ ALI and another‑Appellants
Versus
GOVERNMENT OF
(On appeal from the judgment and order of the
High Court of West Pakistan,
Petition No. 149 of 1956.)
Criminal Appeal No. 60 of 1957
THE DISTRICT MAGISTRATE & DEPUTY COMMISSIONER SIBI AT ZIARAT and another‑Appellants
Versus
MALIK TOTI KHAN and another‑Respondents
(On appeal from the judgment and order of the High Court of West Pakistan, Quetta Circuit, Quetta, dated the 5th August 1957, in Writ Petition No. 17 of 1957).
AND
Criminal Appeal No. 67 of 1958
THE STATE‑Appellant
Versus
ABDUL LATIF KHAN‑Respondent
(On appeal from the order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 11th November 1957, in Misc. Application No. 93 of 1954).
(a) Constitution-‑Destruction of, by successful revolutionary change in Government‑Effect on prevalent law "‑Validity depends upon will of new law‑creating organ‑Constitution of Pakistan-Abrogation of, by President‑Laws Continuance in Force, Order (Post‑Proclamation') (I of 1958) Art. II cls. 1, 4 & 7, Art IV cl. I‑Effect‑Frontier Crimes Regulation (111 of 19013, continues in force‑Pending proceedings, on writ applications based on infraction of a Fundamental right granted by abrogated Constitution, abate‑Constitution of Pakistan (1956), Arts. 4, 5, 170.
By the Proclamation of
Each of the four appeals
before the Supreme Court involved the question whether the writs‑issued
by the High Court in respect of orders of reference to a Council of Elders or
convictions under S. 11 of the Frontier Crimes Regulation (111 of 1901) on the
ground of the invalidity of the latter Regulation as contravening Art. 5 of the
late Constitution‑had abated under cl. 7 of Art. 1 of the Laws
Continuance in Force Order, 1958 promulgated by the President on
Held (per Muhammad Munir, C. J.,) that since Art. 5 of the late Constitution itself had now disappeared from the new legal order the Frontier Crimes Regulation (111 of 1901) by reason of Article IV of the Laws Continuance in Force Order, 1958, was still in force and all proceedings in cases in which the validity of that Regulation had been called in question having abated, the convictions recorded and the references made to the Council of Elders were good.
A victorious revolution or a successful coup d' E' tat is an internationally recognised legal method of changing a Constitution.
After a change of that character has taken place, the national legal order, must for its validity depend upon the new law‑creating organ. Even Courts lose their existing jurisdictions, and can function only to the extent and in the manner determined by the new Constitution.
If the territory and the people remain substantially the same, there is, under the modern juristic doctrine, no change in the corpus or international entity of the State and the revolutionary government and the new Constitution are, according to International Law, the legitimate government and the valid Constitution of the State.
[Hans Kelsen: "General Theory of Law & State" translated by Anders Wedberg; 20th Century Legal Philosophy Series pp. 117‑118].
Where revolution, is successful it satisfies the test of efficacy and becomes a basic law‑creating fact. On that assumption the Laws Continuance in Force Order, however transitory or imperfect, was a new legal order and it was in accordance with that Order that the validity of the laws and the correctness of judicial decisions had to be determined.
Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan & Secretary, Finance and Revenue (Revenue Department, ‑Government of East Pakistan P L D 1957 S C (Pak.) 9 ref.
The Order applied to the situation that came into existence under the President's Proclamation of October 7. The laws that were in force after that date were enumerated in Article IV, but‑ from the list of such laws the Constitution of 23rd March 1956 had been expressly excluded. This meant that when under clause (4) of Article II of the Order the Supreme Court or the High Court was moved for a writ, the ground for the writ, could only be the infraction of any of the laws mentioned in Article IV, or any right recognised by that Order and not the violation of a right created by the late Constitution. The so‑called fundamental rights which were described in Part II of the late Constitution were therefore no longer a part of the national legal order and neither the Supreme Court nor the High Court had under the new Order the authority to issue any writ on the ground of the violation of any of the fundamental rights . . . . . . . Under the new legal Order any law could at any time be changed by the President and therefore there was no such thing as a fundamental right, there being no restriction on the President's law‑making power. Under Article 4 of the late Constitution there was a restriction on the power of the legislature to make laws involving breaches of fundamental rights and invalidity attached to all existing laws, customs and usages having the force of law if they were inconsistent with any of the fundamental rights. This test to determine the validity of the laws and the fetters on the power of the legislature to make laws had both disappeared under the new Order. Unless therefore the President expressly enacted the provisions relating to fundamental rights, they were not a part of the law of the land and no writs could issue on ‑ their basis.
It was true that Article II provided that Pakistan shall be governed as nearly as may be in accordance with the late Constitution but this provision did not have the effect of restoring fundamental, rights because the reference to Government‑ in this Article was to the structure and outline of Government and not to the laws of the late Constitution which had been expressly abrogated by Article IV. Article II and Article IV could therefore stand together and there was no conflict between them. But even if some inconsistency be supposed to exist between the two, the provisions of Article IV which were more specific and later must override those of Article II.
Position in regard to future applications for writs, therefore is that they lie only on the ground that any one or more of the laws mentioned in Article IV or any other right preserved by the Laws Continuance in Force Order has been contravened.
As regards pending applications for writs or writs already issued but which are either sub judice before the Supreme Court or require enforcement, the relevant provision is clause (7) of Article II. This provision means that, excepting the writs issued by the Supreme Court after the Proclamation and before the promulgation of the Order, no writ or order for a writ issued or made after the Proclamation shall have any legal effect unless the writ was issued on the ground that any one or more of the laws mentioned in Article IV or any other right kept alive by the new Order had been contravened. And if there be a pending application or proceeding in respect of a writ which is not covered by clause (4) of Article II, or any other provision of the new Order, that is to say, the application or proceeding relates to a writ sought on the ground that a fundamental right has been contravened, then the application or the proceeding shall abate forthwith. This means that not only the application for the writ would abate but also the proceedings, which require the enforcement of that writ. The abatement must therefore be held to govern all those writs, which were the subject‑matter of appeal before the Supreme Court either on certificate or by special leave.
No judgment, order, or writ of a High Court can considered to be final when either that Court has certified the case to be a fit one for appeal and proceedings for appeal have been taken or when the Supreme Court itself has granted special leave to appeal from that judgment, order or writ.
Cornelius, J., was unable to hold beyond doubt that the concluding words of subsection (7) of S. 2 of the Laws (Continuance in Force) Order, 1958 had the effect of bringing to an abrupt end in the circumstances of the two cases, the proceedings in the High Court which were under-examination before the Supreme Court in Appeals No. 1 of 1957 and 60 of 1958.
Per Cornelius, J.‑"I am unable to hold beyond doubt that the concluding words of subsection (7) of section 2 of the Order of the 10th October 1958, have the effect of bringing to an abrupt end the proceedings in the petitions before the High Courts commenced by the convicted persons in the two cases here under consideration. I do not therefore consider that it is open to me to reverse the judgment of the High Court in these two cases and to re‑call the writs issued by them unless I am satisfied that the view of the High Court on the point of repugnancy to Article 5 of the Constitution of 1956 is not tenable."
His Lordship held that that view was not tenable.
(b) Frontier Crimes Regulation (III of 1901), S. 11‑Council of Elders ceasing to function‑Case on remand may be referred to another Council.
(c) Frontier Crimes Regulation (III of 1901), S. II‑Deputy Commissioner after referring case to Council of Elders is empowered to issue directions in regard to custody of accused.
(d) "Abatement"‑Concept examined.
(e) Frontier Crimes Regulation (III of 1901)–Whether necessarily an illiberal instrument.
(f) Frontier Crimes
Regulation (III of 1901), S. 11‑Not a discriminatory provision‑Constitution of
(g) Frontier Crimes Regulation (North‑West Frontier Province Amendment) Act (X111 of 1954)‑Validity.
(h) Constitution of
Constitutional Criminal Appeal No. 1 of 1957.
Mushtaq Ahmad, Advocate‑General,
Respondents: not represented.
Criminal Appeal No. 24 of 1957.
Muhammad Shafi, Advocate, Supreme Court, instructed by Mushtaq Ahmad, Attorney for Appellants.
Mushtaq Ahmad, Advocate‑General,
Ijaz Ali, Attorney for Respondents.
Faiyaz Ali, Attorney‑General for Pakistan, instructed by Iftikhar‑ud‑Din Ahmad, Attorney, under O. XIV, r. 1, S. C. R. 1956.
Criminal Appeal No. 60 of 1958.
Mushtaq Ahmad, Advocate‑General,
Yahya Bakhtiar, Advocate, Supreme Court, instructed by Siddique & Co., Attorneys for Respondents.
Criminal Appeal No. 67 of 1958.
Mushtaq Ahmad, Advocate‑General,
of
Abdul Latif in person.
Dates of hearing : October 13 and 14, 1958.
JUDGMENT
MUHAMMAD MUNIR, C. J.‑This order will determine
Constitutional Criminal Appeal No. I of 1957, Criminal Appeal No. 24 of 1957
and Criminal Appeals Nos. 60 and 67 of 1958, which arise out of orders made
either by the Lahore or by the Peshawar Bench of the High Court of West
Pakistan on certain petitions for writs under Article 170 of the late
Constitution successfully calling in question either an order referring the
case to a Council of Elders or a conviction recorded under S. 11 of the
Frontier Crimes Regulation, Act III of 1901. Constitutional Criminal Appeal No.
1 of 1957 is a certified appeal, while the others are by special leave of this
Court. The question involved. in each one of them is whether the writ issued by
the High Court abates under clause (7) of Article 1 of the Laws Continuance in
Force Order, promulgated by the President on
By the Proclamation of
October 7, the President annulled the Constitution of
As we will have to interpret some of the provisions of this Order, it is necessary to appraise the existing constitutional position in the light of the juristic principles, which determine the validity or otherwise of law‑creating organs in modern States which being members of the comity of nations are governed by International Law. In judging the validity of laws at a given time, one of the basic doctrines of legal positivism, on which the whole science of modern jurisprudence rests, requires a jurist to presuppose the validity of historically the first Constitution whether it was given by an internal usurper, an external invader or a national hero or by a popular or other assembly of persons. Subsequent alterations in the Constitution and the validity of all laws made thereunder is determined by the first Constitution. Where a Constitution presents such continuity, a law once made continues in force until it is repealed, altered or amended in accordance with the Constitution. It sometimes happens, however, that a. Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal order. A revolution is generally associated with public tumult, mutiny, violence and bloodshed but from a juristic point of view the method by which and the persons by whom a revolution is brought about is wholly immaterial. The change maybe attended by violence or it may be perfectly peaceful. It may take the form of a coup d' E' tat by a political adventurer or it may be effected by persons already in public positions. Equally irrelevant in law is the motive for a revolution, inasmuch as a destruction of the constitutional structure may be prompted by a highly patriotic impulse or by the most sordid of ends. For the purposes of the doctrine here explained a change is, in law, a revolution if it annuls the Constitution and .the annulment is effective. If .the attempt to break, the Constitution fails those who sponsor or organise it are judged by the existing Constitution as guilty of the crime of treason. But if the revolution is victorious in the success that the persons assuming power under the change can successfully require the inhabitants of the country to conform to' the new regime, then the revolution itself becomes a law‑creating ‑fact because thereafter its own legality is judged note by reference to the annulled Constitution but by' reference to its own success: On the same principle the validity of the ‑laws to‑be made thereafter is judged by reference to the new and not the annulled Constitution. Thus the essential condition to determine whether a Constitution has been annulled is the efficacy of the change. In the circumstances supposed no new State is brought into existence though Aristotle thought otherwise. If the territory and the people remain substantially the same, there is, under the modern juristic doctrine., no change in the corpus or international entity of the State' and. the revolutionary government and the new constitution ace, according to International Law, the' legitimate government and the valid Constitution of the State. Thus a victorious revolution or a successful coup d E'tat is an internationally recognised legal method of changing a Constitution.
After a change of the character I have mentioned has taken place, the national legal order must for its validity depend upon the new law‑creating organ. Even Courts lose their existing jurisdictions; and can function only to the extent and in the manner determined by the new constitution. While on this subject Hans Kelsen, a renowned modern jurist, says‑:
"From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated. Usually, the new men whom a revolution brings to power annul only the constitution and certain laws of paramount political significance, putting other norms in their place. A great part of the old legal order remains valid also within the frame of the new order. But the phrase `remains valid', does not give an adequate description of the phenomenon. It is only the contents of these norms that remain the same, not the reason of their validity. They are no longer valid by virtue of having been created in the way the old constitution prescribed. That constitution is no longer in force; it is replaced by a new constitution, which is not the result of a constitutional alteration of the former. If laws, which, are introduced under the old constitution continue to be valid under the new constitution, this is possible only because validity has expressly or tacitly been vested in them by the new constitution. * * * * * * * *
* * * * * * * * * * * *
The laws which, in the ordinary inaccurate parlance, continue to be valid are, from a juristic viewpoint, new laws whose import coincides with that of the old laws. They are not identical with the old laws, because the reason for their validity is different. The reason for their validity is the new, not the old, constitution, and between the two continuity holds neither from the point of view of the one nor from that of the other. Thus it is never the constitution merely but always the entire legal order that is changed by a revolution.
"This shows that all norms of the old order have been deprived of their validity by revolution and not according to the principle of legitimacy. And they have been so deprived not only de facto but also de jure. No jurist would maintain that even after a successful revolution the old constitution and the laws based thereupon remain in ‑force, on the ground that they have not been nullified in a manner anticipated by the old order itself. Every jurist will presume that the old order‑to which no political reality any longer corresponds‑has ceased to be valid, and that all norms, which are valid within the new order, receive their validity exclusively from the new constitution, It follows that, from this juristic point‑ of view, the norms of the old order can no longer be recognised as valid norms. [General Theory of Law & State translated by Anders Wedberg, 20th Century Legal Philosophy Series,
Bearing in mind the principle just stated let us now approach the question involved in these cases. If what I have already stated is correct, then the revolution having been successful it satisfies the test of efficacy and becomes a basic law‑creating fact. On that assumption the Laws Continuance in Force Order, however transitory or imperfect it may be, is a new legal order and it is in accordance with that Order that the validity of the laws and the correctness of judicial decisions has to be determined. The relevant provisions of this Order are:
Article II‑1. Notwithstanding the abrogation of the Constitution of the 23rd March 56, hereinafter referred to as the late Constitution by the Proclamation and subject to any order of the President or Regulation made by the Chief Administrator of Martial Law the Republic to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution . . . . . .
4. The Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari . . . . .
Article IV‑Notwithstanding the abrogation] of the late Constitution, and subject to any order of the President or regulation, made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders‑in‑Council, orders other than orders made by the President under the late Constitution, as are set out in the schedules to this order, rules, by‑laws, regulations, notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President‑ may see fit to make, continue in force until altered, repealed or amended by competent authority.
(2) In this article a law is said to be in force if it has effect as law whether or not the law has been brought into operation.
(3) No Court shall call into question any adaptation made by the President under clause "1"
The Order applies to the situation that came into existence under the President's Proclamation of October 7. The laws that are in force after that date are enumerated in Article IV, but from the list of such laws the Constitution of 23rd March 1956, has been expressly excluded. This means that when under clause (4) of Article II of the Order the Supreme Court or the High Court is moved for a writ; the ground for the writ can only be the infraction of any of the laws mentioned in Article IV, or any right recognised by that Order and not the violation of a right created by the late Constitution. The so‑called fundamental rights which were described in Part II of the late Constitution are therefore no longer a part of the national legal order and neither the Supreme Court nor the High Court has under the new Order the authority‑to issue any writ on the ground of the violation of any of the fundamental rights. The very essence of a fundamental right is that it is more or less permanent and cannot be changed like the ordinary law. In Jibendra Kishore Achharyya Chowdhury and‑ 58 others v. The Province of East Pakistan & Secretary, Finance and Revenue (Revenue) Department, Government of East _Pakistan (P L R 1957 W P 684 (Vol. II): P L D 1957 S C (Pak.) 9), I had the occasion to point out that the very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law and that it is .not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law. Under the new legal Order any law may at any time be changed by the President and therefore there is no such thing as a fundamental right there being no restriction on the President's law‑making power. Under Article 4 of the late Constitution there was a restriction on the power of the legislature to make laws involving breaches of fundamental rights and invalidity attached to all existing laws, customs and usages having the force of law if they were inconsistent with any of the fundamental rights. This test to determine the validity of the laws and the fetters on the power of the legislature to make laws have both disappeared under the new Order. Unless therefore the President expressly enacts the provisions relating to fundamental rights, they are not a part of the law of the land and no writs can issue on their basis. It is true that Article II provides that Pakistan shall be governed as nearly as may be in accordance with the late Constitution but this provision does not have the effect of restoring fundamental rights because the reference to Government in this Article is to the structure and outline of Government and not to the laws of the late Constitution which have been expressly abrogated by Article IV. Article II and Article IV can therefore stand together and there is no conflict between them. But even if some inconsistency be supposed to exist between the two, the provisions of Article IV which are more specific and later must override those of Article II:
The position in regard to future applications for writs therefore is that they lie only on the ground that any one or more of the laws mentioned in Article IV or any other right reserved by the Laws Continuance in Force Order has been contravened.
As regards pending applications for writs or writs already issued but which are either sub judice before the Supreme Court or require enforcement, the relevant provision is clause (7) of Article II which provides
"All orders and judgments made and given by the Supreme Court between the Proclamation and the promulgation of this order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving these orders and judgments no writ or order for a writ issued or made after the Proclamation shall hate effect unless it is provided for by this order, and all applications and proceedings in respect of any writ which is not so provided for sate forthwith".
Analyzed, this provision means that excepting the writs issued by the Supreme Court after the Proclamation and before the1 promulgation of the Order, no writ or order for a writ issued or made after the Proclamation shall have any legal effect unless the writ was issued on the ground that any one or more of the laws mentioned in Article IV or any other right kept alive by the new order had been contravened, And if there be a pending application or proceeding in respect of a writ which is not covered by clause (4) of Article II, or any other provision of the new Order that is to say, the application or proceeding relates to a writ sought on the ground that a fundamental right has been contravened, then the application or the proceeding shall abate forthwith. This means that not only the application for the writ would abate but also the proceedings which require the enforcement of that writ, The abatement must therefore be held to govern all those writs which were the subject‑matte of appeal before the Supreme Court either on certificate or by special leave. No judgment, order or writ of a High Court can be considered to be final when either that Court has certified the case to be a fit one for appeal and proceedings for appeal, have been taken or when the Supreme Court itself has granted special leave to appeal from that judgment, order or writ. I am therefore of the view that the writs issued by the High Court in these cases are not final writs, and that all proceedings in connection with such writs, including the original applications in the High Court, have abated.
The Frontier Crimes Regulation had been held by the High Court to be invalid on the ground that it contravened Article 5 of the Constitution and since that Article itself has now disappeared from the new legal order that Regulation by reason of Article IV is still in force and all proceedings in these cases in which the validity of that Regulation had been called in question having abated, the convictions recorded and the references made to the Council of Elders are good.
In making this order I have not given effect to the contention raised in Criminal Appeal No. 24 of 1957 that the reference to the Council of Elders was bad because the Deputy Commissioner had not stated in his order that it was inexpedient that the question of guilt or innocence of the accused should be determined by an ordinary Court or the contention in Criminal Appeal No. 60 of 1958 that the reference to the second Council after remand to the original Council was illegal. In the former the reference was not under S. 11 but under S. 15 which does not require any such expediency or inexpediency as is mentioned in S. 11 and in the latter the remand to the original Council j proved infructuous as the Council declined to function after the remand. I have also rejected the argument in the first of these appeals that after a case is referred to a Council, the Deputy Commissioner ceases to have the jurisdiction to detain an accused person in custody. Every Deputy Commissioner acting in criminal proceedings under the Regulation is necessarily ' a Magistrate and as such is competent to issue directions as to the custody of the accused.
Parties will bear their own costs throughout.
SHAHABUDDIN, J.‑These I are appeals against the decisions of the High Court of West Pakistan, Constitutional Criminal No. 1 of 1957 on a certificate granted by the High Court and the other three by special leave. In stating the facts giving rise to these appeals it is convenient to take up Criminal Appeals Nos. 60 & 67 of 1958 first.
A case of murder against
Malik Toti Khan and Mehraban Khan, respondents in Criminal Appeal No. 60 of
1958, and several others was referred by the District Magistrate and the Deputy
Commissioner, Sibbi, under S. 11 of the Frontier Crimes Regulation to a Council
of Elders, who while finding the others guilty held that these respondents were
not guilty. Under S. 11 (3) the Deputy Commissioner could accept the finding or
remand the case to the same Council of Elders for a further finding or refer it
to another Council of Elders. He adopted the second of the above courses but
the Council of Elders after keeping the case pending for sometime expressed
their inability to give an opinion on the ground that the parties had
approached them and they did not have an open mind on the question. The case
was then referred to another Council of Elders (Special Jirga) who found the
respondents guilty, whereupon the Deputy Commissioner convicted them under S.
302/149, P. P. C. and sentenced them to rigorous imprisonment for five years
and a fine of Rs. 500 each. The respondents then applied to the High Court for
a writ. ,or habeas corpus and certiorari on the ground that the provisions of
the Frontier Crimes Regulation enabling the executive authorities to refer
criminal cases to a Council of Elders were void under Art. 4 of the
Constitution of the
A case of criminal
breach of trust against the respondent in Criminal Appeal No. 67 of 1958 Abdul
Latif Khan said to have been committed in
The respondents in Cr. A. No. 1 of 1957 Dosso and Muhammad Khan who were convicted by the District Magistrate Loralai in the special areas under. S. 376 read with S. 12 (2) of the Frontier Crimes Regulation and sentenced to five years' rigorous imprisonment each on the basis of an award by a Jirga (Council of Elders) and were detained in jail at Machh which is outside the special area and within the jurisdiction of the High Court, applied to that Court for an 'appropriate writ for their being set at liberty on the ground that they were being illegally detained. The learned Judges for the reason given in the case mentioned above of Malik Toti Khan and Mehraban Khan via. that the relevant provisions of the Frontier Crimes Regulation were void being repugnant to Art. 5 of the Constitution, held that the convictions of Dosso and Muhammad Khan were without jurisdiction; but they found themselves unable to set them aside as the trial had taken place, in special areas which under Art. 178 of the Constitution was not within their jurisdiction. They however ordered their release on the ground that they were illegally detained. A certificate was granted to the State to enable it to appeal to this Court.
The appellants Sabz Ali and Muhammad Akbar in appeal No. 24 of 1957 were committed to the Court of Session under Ss. 302 & 307, P. P. C. but the Public Prosecutor withdrew from the prosecution under S. 15, Frontier Crimes Regulation, whereupon as required under that provision the Sessions Judge stayed the proceedings and the Deputy Commissioner referred the case to a Council of Elders consisting of three Magistrates and a non‑official. The appellants applied for a writ directing that the trial be not proceeded with under the Frontier Crimes Regulation, that the reference to the Council of Elders be quashed and that the respondents should be tried in a Court of law. The contentions were (1) that a‑ trial before the Council of Elders deprived them of their fundamental right of consulting a counsel given under Art. 7 of the Constitution; (2) that their detention being by a Deputy Commissioner was illegal as under the said Article detention could be only with the authority of a Magistrate; (3) that the reference was invalid as it did not expressly say that the Deputy Commissioner considered it expedient to have petitioners tried in a Court of law and that (4) the Council of Elders was illegally constituted as three of the four members were Magistrates. The learned Judges held that the Frontier Crimes Regulation did not become unlawful because it did not allow the appearance of counsel and that Art. 7 of the Constitution could be treated as part of every law relating to the trial. of an offence. They, therefore, gave a direction that no evidence should be heard or recorded before the accused were given an opportunity of defending themselves by a pleader. As for the second‑contention their view was that the Deputy Commissioner was acting as a Magistrate. The other two contentions also were not accepted. Absence of the word 'inexpedient' in the reference did not, they held, make it invalid and as far as the composition of the Council of Elders was concerned they found that as long as the members were Pathans or Baluchis their being Magistrates did not matter. Special leave was granted to consider the last three questions i.e., contentions 2 to 4 mentioned above. Though in' this case the question that the Frontier Crimes Regulation was in conflict with Art. 5 of the Constitution was not raised yet there was a reference to the fundamental right under Art. 7. In the other three cases the main question was whether the Frontier Crimes Regulation was in conflict with Article 5 of the Constitution.
While these appeals stood posted to the 13th October for hearing the President abrogated the Constitution by a Proclamation issued on the 7th; and then on the 10th he promulgated "the Laws (Continuance in Force) Order, 1958 which for the sake of convenience will be referred to hereafter as `the nevi order' empowering all the Courts in existence immediately before the Proclamation toJ1 continue in being and exercise their powers and jurisdiction subject to the provisions of the said Order.
Its relevant provisions with reference to which the points raised before us have to be considered are these.
"2(1) Notwithstanding the abrogation' of the Constitution of the 23rd March 1956, hereinafter referred to as the late Constitution, by the Proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law the Republic to be known henceforward as Pakistan, shall be 'governed as nearly as may be in accordance with the late Constitution.
(2) Subject as aforesaid all Courts in existence immediately before the Constitution shall continue in being and, subject further to the provisions of this Order, in their .powers and jurisdictions.
(4) The Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus prohibition quo warranto and certiorari.
(7) All orders and judgments made or given by the Supreme Court between the Proclamation and Promulgation of this Order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving those orders and judgments no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order, and all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith.
(i) the Proclamation;
4 (1) Notwithstanding the abrogation of the late Constitution and subject to any Order of .the President or Regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders in Council, Orders other than Orders made by the President under the late Constitution, (such orders made by the President under the late Constitution as are set out in the Schedule to this Order, Rules, bye‑laws, Regulations, Notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, replaced or amended by competent authority".
It was contended for the
State by the learned Attorney-General and. the learned Advocate‑General
that as the late Constitution was no longer in force, Art. 5 of that
Constitution did not apply and the Frontier Crimes Regulation, which comes
within the expression `all laws' in paragraph 4 (1) of the new order having
been validated thereunder was applicable, subject only to the limitation
indicated therein and not to the provisions of the late Constitution, which is
specifically excluded in the said clause. Mr. Bakhtayar for the respondents in
Criminal Appeal No. 60 of 1958, on the other hand, argued that the fundamental
rights are preserved by `the new order' as according to its Art. 2 (1)
According to the
Proclamation which is not and cannot be called or permitted to be called in
question as well as in actual effect the late Constitution stands abrogated,
and the new order under which the Courts are exercising their respective
jurisdictions at present takes its place with regard to the matters to which it
relates. The adoption in the new order of any of the provisions of the late Constitution
does not affect the abrogation, as those provisions, as pointed out by Hans
Kelsen in his book General Theory of Law and State (translated by Anders
Wedberg, 20th Century Legal Philosophy Series)‑ relied on by the learned
Attorney‑General, receive validity only from the new Order. In the words
of the learned author "the laws, which in the ordinary inaccurate
parlance, continue to be valid are, from a juristic view point, new laws whose
import coincides with that of the old laws. They are not identical with the old
laws, because the reason for their validity is different. The reason for their
validity 4s the new, not the old constitution, and between the two continuity
holds neither from the point of view of the one nor from that of the
other". Therefore, for such provisions to have. in the new Order the same
effect as in the old, there must be a clear indication in the new order that
they were adopted with that intention. Viewing the provisions oh the new order
from this standpoint I am unable to agree with Mr. Bakhtayar that fundamental
rights are preserved by it. It is true that under Art. 2 (1) "
It was then contended by Nor. Bakhtayar that this might be so with regard to a future applications for writs, but as in these cases the High Court had issued the writ when the late Constitution was in force, we should not interfere at this stage. This argument overlooks clause (7) of Art. 2 of the new Order where under pending applications and proceedings in respect of any of the writs not provided for by the new order, shall abate forthwith. The writs provided for by the new order i.e., those mentioned in clause (4) of Article 2 cannot be utilised to enforce the fundamental rights conferred by the late Constitution, as, for reasons already stated, those rights no longer exist as such. The, fact that the High Court has issued the writs and only appeals are pending in this Court does not save the orders of the High Court as in the above‑mentioned clause "all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith". In the present cases, the entire proceedings are before this Court in virtue of the special leave granted in three of them and the certificate of the High Court in the fourth.
In Appeals Nos. 1 of 1957 and 60 and 67 o€ '1958, therefore, the applications and proceedings in respect of the writs which were based on Art. 5 of the late Constitution have to be regarded as having abated. It was however contended in Appeal No. 60 of 19.58 that the Deputy Commissioner Sibi having once remanded the case to the Jirga, which had given its award had no jurisdiction to send it again to a second Jirga. This point was not raised specifically in the application, nor does it appear to have been raised before the High Court. However, there is no force in it. Section 11 (3) no doubt empowers the Deputy Commissioner to adopt only one of the courses indicated in it, but the order of remand. in this case proved infructuous as the Jirga concerned was unable to reconsider the matter. Had it given an award on a reconsideration of the case the Deputy Commissioner would not have had jurisdiction to refer the case to a second Jigra. The result, therefore, is that tht convictions and sentences imposed on the respondents in Appeals Nos. 1 of 1957 and 60 of 1958 and the order of the Deputy Commissioner, Peshawar, referring the case of the respondent in Appeal No. 67 of 1958 to a Jirga get restored in consequence of the abatement.
In Cr. A. No. 24 of 1957 the proceedings in respect of the writ have to be taken as having abated only as far as' the direction given‑ by the High Court that no evidence shall be heard and recorded before the appellants have been given an opportunity of defending themselves by a pleader is concerned, because that direction was based on Art. 7 of the late Constitution. But the other questions to consider which special leave was granted arise on the provisions of the Frontier Crimes Regulation independent of the late Constitution. , The learned advocate' for the appellants however pressed only one of those three points, viz., that in the absence of a finding of the Deputy Commissioner that it was inexpedient that they should be tried by a Court of law, the order of reference to a Jirga was not valid. I see no force in this argument. As already stated, the reference in this case, was made under S. 15 of the Frontier 'Crimes Regulation which is to the effect that when a trial before a Court of Session the Public Prosecutor at any time before an order of conviction or acquittal withdraws from the prosecution the, Sessions Judge shall stay proceedings and the Deputy Commissioner shall refer' the case to a Council of Elders. There is nothing in this section requiring the Deputy Commissioner to determine the question of expediency. He has no choice as he is bound to make a reference. This appeal has to be dismissed in respect of this contention. The result will be that the trial of the appellants before the Jirga will proceed according to the Frontier Crimes Regulation and the direction of the High Court referred to above will have no effect.
I would determine these appeals in the manner indicated above _ and pass no order, as to costs.
CORNELIUS, J.‑I agree with the resulting order proposed in these cases by my Lord the Chief Justice, with whom my learned brothers have concurred, but as on certain points I find myself, with great regret, unable to accede to the reasoning which has prevailed with my Lord and my learned brothers, it is necessary that I should give my own reasons for varying the orders made in these four cases by the learned Judges of the High Court of West Pakistan, in my own words.
It will be convenient to state, at
the outset, the nature of the orders, which came under consideration in each of
these cases in the High Court. In Constitutional Criminal Appeal No. 1 of 1957,
which has been preferred by the State against Dosso and Muhammad Khan, the
position was that Dosso and Muhammad Khan had been convicted under the Frontier
Crimes Regulation, 1901 by the Deputy Commissioner of Loralai, a "special
area" excluded from the jurisdiction of the High Court (as well as of this
Court) by Article 178 of the late Constitution (to which I shall refer
hereafter as the Constitution of 1956), and had been sentenced to imprisonment
of certain terms. They were undergoing imprisonment in a jail at Machh in
Criminal Appeal No. 24 of 1957 has been brought by Sabz Ali and Muhammad Akbar, by special leave granted to them to consider the following questions, namely, (i) whether Sabz Ali's detention by order of the Deputy Commissioner was legal; in view of the fact that he was being tried by a jirga, (if) whether the Deputy Commissioner's order referring the case to jirga was legal, in the absence of' an expression of an opinion that trial in the ordinary Courts was "inexpedient", and (iii) whether the constitution of the jirga was proper in view of a certain decision by the Supreme Court, notwithstanding that it was in compliance with an Act of the North‑West Frontier Province passed in 1954. The first question had been agitated before the High Court, which had held that the detention of Sabz Ali was under the orders of a Magistrate and that those orders were not rendered unlawful by the fact that the case had been preferred to a jirga for enquiry and report. As regards the second question of fact the reply of the High Court was that the reference to jirga had been made under section 15 of the Regulation and necessarily implied that the Deputy Commissioner had decided that it was inconvenient to have the question of the guilt or innocence of the accused persons tried by the ordinary Courts. On the third question, the learned Judges were of the view that the constitution of the jirga, which consisted of three Magistrates and one non‑official was not illegal. The High Court decided one further matter, namely, that the petitioners were entitled to be defended by a lawyer at the trial, and made a direction accordingly acting under Article 7 of the Constitution of 1956. This question will also require to be considered in this judgment.
Criminal Appeal No. 60 of 1958 has been brought by the Deputy Commissioner of
Sibi and the Superintendent of the Central Jail at Machh to call in question
the writ granted by the High Court of West Pakistan, in favour of two convicted
persons Malik Toti Khan and Mehrban Khan, setting aside the convictions and
sentences awarded by the Deputy Commissioner under the Regulation and directing
him not to refer the case against these two persons to a jirga, while leaving
it open to the authorities to proceed against them in the ordinary Courts. This
case related to a settled area in
Criminal Appeal No. 67 of 1958, relates to the
The cases, before the
Court thus fall into two classes. Two of them relate to orders of reference to
jirgas by Deputy Commissioners. The other two relate to orders of conviction by
Deputy Commissioners and therefore to what might be described as completed
proceedings. The cases of Sabz Ali and of Abdul Latif Khan fail in the first
category, but the orders made in these cases are not by any means similar. In
Sabz All's case, it has been held that the reference to the jirga was valid
under law and should be allowed to proceed except that, by way of enforcement
of Article 7 of the Constitution of 1956, a direction has been made that the
accused persons should be allowed, the benefit of counsel at the trial. In the
latter case, on the other hand, the finding of .the High Court is that the
reference‑ is illegal because it was made under a law offending against
Article 5 of the Constitution of 1956, and they have directed that it should
not be proceeded with. The question common to both these cases is whether
today, and for the future, which is important since the trial in each case is
yet to commence, the law allows of the making of references to jirgas, and the
other consequential proceedings provided for by the Regulation. For, as from
The Frontier Crimes
Regulation is a law, which was in force immediately before the Proclamation,
and as such, this law is saved by section 4, which however expressly does not
retain the provisions of the Constitution of 1956 as law. Now, the question in
the first two cases viz., those of Sabz Ali and of Abdul Latif Khan is whether
the provisions of the Regulation are to be applied according to their tenor and
without reference to Articles 5 and 7 of the Constitution of 1956 which are
included in Part 11 of that Constitution under the heading "Fundamental
Rights". Article 4 in that part provided that every law and every custom
or usage having the force of law should be void to the extent of its
inconsistency with the Fundamental Rights. It is clear that these Fundamental
Rights and the supporting Article 4 have not been retained as law, whereas the
provisions of the Regulation have been so retained. This is so far as section 4
of the President's Order of the 10th October 1958, goes, but we were invited to
say that because, by that Order, it is also provided that the country
"shall be governed as' nearly as may be in accordance with the late
Constitution", therefore, the Fundamental Rights, being related generally
to all matters within the province of Government, should be deemed to have been
kept alive. The argument is 'attractive, but does not take into account the
discrepancy between the direct provision in the Order, which makes the Frontier
Crimes Regulation a law with effect from the 7th October 1958 (in continuance
of its previous existence as law under other instruments up to the 7th October
1958), and the equally direct exclusion of the provisions of the Constitution
of 1956, from the laws of Pakistan. The Order does not furnish any indication,
which might tend to weaken the primary and basic proposition upon which the
Order itself is based, namely that the Constitution of 1956 is abrogated. To
say that the Government of the country shall be carried on "in accordance
with the late Constitution" is not equivalent to giving new life to that
Constitution, or accepting that any of its provisions retained the slightest
validity, of their own force. For that Constitution, as well as for the new
dispensation, which replaced it, the date
Regulation may be applied, as from
In the case of Sabz Ali a reference to jirga had been made, which must be held to be valid under the existing law. The direction by the High Court in Sabz Ali's case that he should be allowed to be defended by counsel at the jirga trial, being founded on Article 7 of the Constitution of 1956, is today without force and must therefore be set aside. The other questions arising in that case present little difficulty. It was said that the detention of one of the accused persons under the orders of the Deputy Commissioner, pending the proceedings before the jirga was illegal, because such detention should, after the making of the reference, be solely within the jurisdiction of the jirga. The argument is fallacious for, it does not appear that such a jurisdiction vests in the jirga, and since the function of the jirga is to enquire into the matter and report to the Deputy Commissioner as to the guilt or innocence of the accused persons, upon which recommendation the Deputy Commissioner is empowered to act in one of several ways, it seems clear that the duty of deciding as to whether or not the accused person shall remain in custody pending the disposal of his case, still inheres in the Deputy Commissioner despite the reference to the Jirga. It is o course perfectly clear that all Deputy Commissioners are Magistrates, and in that capacity qualified to order the detention of persons accused of criminal offences. The second point, as to the validity of the reference for lack of expression of an opinion as to the expediency of trial before the ordinary Courts is equally, of no weight, for the reference in this case was under section 15 of the Regulation which by its terms enables a Deputy Commissioner to instruct a Public Prosecutor to withdraw from a prosecution before a Court of Sessions at any time prior to the making of a final order in the case, with the object that the case may be referred to a jirga, and thereupon the Sessions Court is required to stay proceedings and the Deputy Commissioner is required to refer the case to a jirga. The law does not require any declaration as to inexpediency or otherwise. The third question raised was as to the constitution of the jirga i.e., whether it was constituted in accordance with the Pathan or Baluch usage. It seems that out of the jirga members nominated, three were stipendiary Magistrates. The High Court has held that this circumstance by itself did not vitiate the constitution of the jirga so long as it was convened "according to the Pathan, Baluch or other usage". Reference was also made to Act XIII of 1954 passed by the North‑West Frontier Province Legislative Assembly providing that jirgas should consist of three or more persons, whether officials or otherwise, convened by the Deputy Commissioner and presided over by a section 30 Magistrate. At a later stage in this judgment, I propose to consider the purpose and effect of this amendment at length, but at this point I think it is sufficient to say that like the Frontier Crimes Regulation of 1901, this amending Act of 1954, is law having full validity in the new dispensation and therefore it is not open to any party today to challenge the legality of a reference to a jirga, so long as that jirga is constituted in accordance with the law as at present in force: Reference was made in the arguments to the decision of this Court in the case Crown v. Ghulam Muhammad Khan of Lundkhowar (P L D1956 F C 197), where also the jirga had included a majority of officials, but no reference was made during the arguments in that case to Act X111 of 1954 mentioned above, as will appear from the following observations of my Lord the Chief Justice in his judgment :‑
"It seems to us to be clear that this letter has the effect of amending the Regulation, and that for that reason it was ultra vires the Provincial Government. Neither before the Court of the Judicial Commissioner nor in the concise statement or arguments before us was any provision mentioned under which the Provincial Government could amend the procedure laid down in the Regulation for the Constitution of the Council of Elders".
(The letter in question had been issued by the N.‑W. F. P. Government to ail Deputy Commissioners directing them to form jirgas of competent Magistrates and where a sufficient number, that is to say three, of competent Magistrates were not available to appoint Tehsildars in lieu). That judgment clearly does not provide authority for holding that the 9onstitution of the jirga in the case of Sabz Ali is not in accordance with law, since there is a valid legislative enactment under which such a jirga may be appointed. Accordingly; it would seem that the appeal of Sabz Ali and Muhammad Akbar should fail, and, further more, the direction that these persons must be allowed the benefit of counsel before the jirga, must be cancelled as not being valid in law.
In the case of Abdul Latif Khan, also, the jirga was composed of officials. By
itself, that circumstance does not affect the legality of its constitution. The
other questions raised in this case as to the effect of Article 5 of the
Constitution of 1956 upon the relevant provisions of the Regulation, is no
longer, since
I proceed now to the
consideration of the cases of Dosso and Malik Toti Khan, both of which come
from that part of
The point falls to be considered upon the reading and interpretation of subsections (4) to (7) of section 2 of the Order of the 10th October 1958. These provisions are reproduced below:‑
"(4) The Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
(5) No writ shall be issued against the Chief Administrator of Martial Law, or the Deputy Chief Administrator of Martial Law, or any person exercising powers or jurisdiction under the authority of either.
(6) Where a writ has been sought against an authority which has been succeeded by an authority mentioned in the preceding clause, and the writ sought is a writ provided for in clause (4) of this Article, the Court notwithstanding that no writ may be issued against an authority so mentioned may 'send to that authority its opinion on a question of law raised.
(7) All orders and judgments made or given by the Supreme Court between the Proclamation and the proclamation of this Order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving those orders and judgments no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order, and all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith".
The particular words whose effect is to be judged are the words at the very end of subsection (7) proving that "all applications and proceedings in respect of any writ which is nod' so provided for shall abate forthwith". It is necessary for the purpose of this judgment to ascertain which is meant by the expression "abate" in this sentence and further what "applications and proceedings" are to suffer abatement.
The expressions "abate" and "abatement" do not appear to be capable of being defined generally with any exactness. They are used in a number of legal contexts, and their effect in each case may be gauged with precision, either from the context or from the terms of the relevant statute. The incidents of abatement vary from law to law. In several forms of law, one prominent feature of abatement is that the proceedings may be revived upon the happening of certain events, and the performance of certain conditions, so that it might be thought that in such cases, abatement is not a final conclusion, but has the effect of keeping the matter in a state of suspense, pending certain developments.
It seems scarcely possible to apply that conception of abatement to the provision here under examination. Every circumstance combines to create the impression that the provision is for an immediate and peremptory cessation, beyond hope of recall. It for that reason all the more necessary that it should be ascertained with precision, what applications and proceedings are Mended by this Order to suffer immediate and final cessation.
Abatement is ordinarily a concept of the procedural law. It takes effect frequently upon a proceeding becoming defective by the death or loss of capacity of any of the parties to a cause or matter. It may be based upon a defect of form, i.e., the plea may be raised on account of an informality or it may be founded upon a change or transfer of interest. The common cases of abatement in the Civil Law arise upon the death or bankruptcy of the party or upon the devolution of the estate in dispute. In all these cases there is provision for substitution of parties and for the proceedings to continue thereafter. In the law of election petitions a petition abates upon the death of a sole or the last surviving petitioner, but it may be revived by a competent person entitled to pursue it. In affiliation proceedings, i.e., proceedings commenced by a mother to obtain maintenance for an illegitimate child from the putative father, it has been held that the proceedings abate upon the death of the mother, because only the mother is competent to commence them and equally they abate upon the death of the putative father. In these cases, the abatement is final. Proceedings in lunacy are abated by the death of the patient, and they remain so until a personal representative has been duly constituted, when they may be , revived.
These are the familiar cafes in which the law provides for abatement, but it is clear also that abatement may take place by operation of law. The last sentence in subsection (7) of section 2 of the Order of the 10th October 1958, is clearly such a law. It remains to consider what particular applications and proceedings are liable to abatement by the operation of this law. The proceedings with which we are concerned, namely, the convictions obtained in the two cases here under consideration, derive their force and owe their validity to the Constitution of 1956, and their validity would ordinarily fall to be judged against the provisions of that Constitution. The Order of the 10th October 1958 does not explicitly have any retrospective operation, and one would therefore hesitate, on the strength of a possible interpretation of the Order to declare the invalidity of anything done or suffered so long as the Constitution of 1956 was in force and operation. On the other hand, should the implication be clear, the Order of the 10th October 1958, must necessarily prevail over anything appearing in the Constitution of 1956 or anything seeming to have validity only by reference to the provisions of that Constitution.
We have been asked to declare that the proceedings instituted in the High Court to challenge the convictions in the two cases presently under discussion are being continued in this Court upon appeal, that these are proceedings "not so provided for", within the meaning of the last sentence in subsection (7) of section 2 of the Order of the 10th October 1958, and that they must consequently abate forthwith.
I have read with great care the reasons advanced in the judgments of my Lord the Chief Justice and my learned brethren which favour that conclusion, but I find myself still in doubt upon the question, and since the decision involves a question of the liberty of the subject, I feel that, consistently with the long accepted rules governing the interpretation and application of statutes, which is a matter strictly within the judicial field, it is my duty to refrain from coming to a conclusion in the sense desired by the learned Attorney‑General arguing for the State. I shall state my reasons as briefly as may be.
To accept the proposition advanced by the Attorney-General amounts to holding that the provision in question provides for abatement of a proceeding not on the ground of procedural defect or lack of capacity or competency, but by reason of the cancellation of the Fundamental Rights which took effect from the 7th October 1958, so that as from that date, the validity of any law still in force was not to be judged in relation to those rights. Now, it will be clear from the discussion above in the cases of Sabz Ali and Abdul Latif Khan that, with reference to proceedings which on a date after the 7th October 1958 are still pending proceedings under section 11 of the Frontier Crimes Regulation, there can be no manner of doubt that the validity of these proceedings is not to be judged in the light of any of the Fundamental Rights enumerated in the Constitution of 1956, as from the 7th October 1958. But it is equally clear that up to that date, the duty of the Courts was plainly to declare any law, which did not comply with the said Fundamental Rights, to be invalid. Therefore, any words contained in the Order of the 10th October 1958, which are to have the effect of nullifying that duty as applying up to the 7th October 1958, must be words of the clearest possible import, since they would be words having retrospective operation in respect of the high judicial authority of the superior Courts. That authority has been maintained and continued by the Order of the 10th October 1958, and as has been seen, in relation to the questions before the Court, there are no words in the Order, which may be thought to have retrospective operation. Therefore, I hesitate to accept an interpretation which would involve retrospective deprivation of the jurisdiction and annulment of the duty of the High Courts, existing on a date in the past, when under the then prevailing instruments, that jurisdiction and that duty were plain for all to see.
Secondly, I do not recollect having found the expression "abatement" to be ever used in relation to the failure of a proceeding resulting from the failure of the right upon v, hick it T was based. Abatement ordinarily follows upon defect of form or procedure or loss of capacity in parties, and it may not be safe to assume that the meaning of the word "abate" as used in the Order of the 10th October 1958 is so widely different from the generally accepted senses of that word, as is claimed by the learned Attorney‑General. It is true that if by the Order of the 10th October 1958, any law has been wholly destroyed or deprived of effect whatsoever, then the issue of a writ to enforce any right provided for by such law becomes impossible. Any application or proceeding that may be pending whose purpose may be to obtain enforcement of such a right must therefore fail by reason of the right no longer being available, and not by reason of procedural or formal defects, or loss of capacity etc. The Order of the 10th October 1958, could have been worded to provide that no writ should issue in such cases, although it might have been thought that such a provision was superfluous. But, does the last sentence in subsection (7) of section 2 make any such provision? I note that the words are not that "no writ which is not provided for shall abate forthwith" but they read "no writ which is not so provided for shall abate forthwith" and immediately it becomes clear that there is a reference, by the use of the word "so", to something which has been stated earlier. That something is contained in the immediately foregoing clause in subsection (7) of section 2 which reads as follows:‑
"no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order . . . . . ."
It therefore becomes necessary to examine the Order to see what kinds of writs have been expressly provided for, and it is in my opinion a reasonable assumption that when the words ` unless it is provided for" are used what is meant is something stronger than a conclusion based upon mere inference, as to the provision. One must look diligently first for express provision, and if such be lacking, then for provision by implication of a strong and necessary character directly affecting not the right sought to be enforced by the writ, but the competency of the writ itself.
The search for expression in the above‑mentioned sense need not take one far a field. In subsection (4) of section 2, it is expressly, stated that the Supreme Court and the High Courts shall have power to issue writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is clear that there is provision empowering the issue of writs by the Courts mentioned, and also for the kinds of writs, which these Courts may issue. By the operation of the prohibitive provisions in subsection (7), writs other than the writs provided for in subsection (4) cannot issue. But to the power given by subsection (4) there are exceptions contained in subsections (5) and (6). The Courts mentioned are expressly debarred from issuing writs of any of the kinds mentioned in subsection (4) against the Chief Administrator of Martial Law, the Deputy Chief Administrator of Martial Law, and any person exercising power or jurisdiction under the authority of either. Specifically then, the Order makes a prohibitive provision, in respect of every kind of writ against these authorities, and therefore under subsection (7) any writs directed to any of these authorities shall have no effect. In subsection (6) there is a further provision, saving the authorities specified in subsection (5) from receiving writs in the capacity of successors to some other authority, against whom it was competent for the Courts mentioned to issue writs. When such a replacement takes place, the proceedings do not immediately terminate, or become terminable. The Court may continue the proceeding, but at the conclusion thereof, if it is of the opinion that ordinarily a writ should have issued, it may instead send its opinion upon a point of law arising in the case, to the successor authority.
These matters, appearing from within section 2 itself, furnish direct instances of writs provided for as well as writs not provided for by that section. Still bearing in mind that abatement is an incident applicable ordinarily to procedure and on grounds of formality or capacity, to which may be added the ground of immunity, I think it is plain that the expression "any writ which is not so provided for shall abate forthwith" is capable of full application to matters specifically expressed within section 2 of the Order of the 10th October 1958. 1 have read the remainder of that Order with great care for the purpose of determining whether it contains any other words having a strong and necessary implication of the abatement of a writ; and in especial a writ, i.e., as a specific process or machinery by which law is enforced. If the concluding words in subsection (7) of section 2 of the Order had been devoid of meaning or application unless they were understood to bring about a termination of writs and proceedings relating thereto, which had the effect of enforcing rights which have ceased to be available after the 7th October 1958, although they were available and had in fact been enforced in relation to a matter concluded long before that date, I might have felt it necessary to accept that the words must have the latter meaning, but I find in section 2 itself, sufficient material to indicate what was meant by the draftsman in using the expression "unless it is provided for by this Order" and the further expression "which is not so provided for".
One final reason for my being in a state of doubt upon this question may be added in brief. It is that the validity of writs issued prior to the 7th October 1958, under the provisions of the Constitution of 1956 does not appear to be generally hit by anything contained in subsection (7) aforesaid, on the interpretation for which the learned Attorney‑General has contended before us. Only those of such writs which happen to be still subject to legal revision upon the coming into force of the new regime are sought to be avoided on the basis of this interpretation, and this, not on any consideration whether they were rightly or wrongly granted at the time when they were issued in the eye of the law as then in force, but merely because they happen to be pending by virtue of having been appealed against. It is, in my view, more reasonable to infer, especially since the Order of the 10th October 1958, does not appear, by expression, to have retrospective effect, that as to matters which were concluded during the period which finally terminated on the 7th October 1958, the intention of the Order is that the law in force during that period, at the relevant time, should be allowed to prevail. For, it remains further to be said with reference to a number of Fundamental Rights enumerated in Part II of the Constitution of 1956 that they do not derive their entire validity from the fact of having been formulated in words and enacted in that Constitution. A number of these rights are essential human rights which inherently belong to every citizen of a country governed in a civilised mode, and speaking with great respect, it seems to me that the view pressed before us by the learned Attorney‑General involves a danger of denial of these elementary rights, at a time when they were expressly assured by writing in the fundamental law of the country, merely because that writing is no longer of any force.
For these reasons, I am unable to hold beyond doubt that the concluding words of subsection (7) of section 2 of the Order of the 10th October 1958, have the effect of bringing to an abrupt end the proceedings in the petitions before the High Court commenced by the convicted persons in the two cases here under consideration. I do not therefore consider that it is open to me to reverse the judgment of the High Court in these two cases and to recall the writs issued by them unless I am satisfied that the view of the High Court on the point of repugnancy to Article 5 of the Constitution of 1956 is not tenable.
The provisions of the
Frontier Crimes Regulation with reference to the trial of crimes commence with
section 11 and, as has been indicated already, they consist in the main of
directions enabling executive officers where they think "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" to refer the question to a Council of Elders (otherwise known as a
jirga) and to require the Council to come to findings upon the questions
arising. Upon receipt of those findings, the authority is to take requisite
action which may be in the nature of acquittal or discharge, or of a remand to
the same jirga, pr a reference to another jirga, and if the Deputy Commissioner
convicts the accused person he must do so in accordance with a finding of not
less than three-fourths of the members of the jirga. There are special
provisions regarding sentences which are in the main lower than those provided
by the Penal Code, and do not include a sentence of death. Power is given to
the Deputy Commissioner acting through the Public Prosecutor to withdraw any
case from a Court of Session and the law requires that when this power is
exercised the case shall be referred to jirga. By section 48, appeals are
prohibited, but by section 49 the Commissioner is empowered to revise all
decisions in criminal cases inquired into by jirga, and to exercise the powers
of an Appellate Court in the case as well as the power of enhancing any
sentences. Final validity is given to a finding of a jirga on a question of
fact where the finding has been accepted by the Deputy Commissioner by a
provision barring interference by the Commissioner unless there has been a
material irregularity or defect in the proceedings or such a procedure as is
calculated to occasion miscarriage of justice. These provisions are materially
different from those contained ‑in the Code of Criminal Procedure, and
while in some respects, they might be thought to be less liberal than the
latter provisions, in other respects, e.g. the binding nature of a finding of
fact by a three-fourths majority of a jirga and in the matter of sentences, it
may be thought that they are more advantageous to the accused person. The right
of trial by one's equals or "peers" which is embodied in the mode of
trial by jury, as known to British justice, is not one, which has been easily
or cheaply won. It is certainly very highly valued in countries where it
prevails, as affording a guarantee for the subject against the possibility of
official oppression through the modes of justice. In the Frontier Crimes Regulation,
this right is allowed to a very great extent. It is not a right which is
allowed to the majority of the citizens of
"Obviously, such a decree is no simple decree of the Civil Court of general jurisdiction. It is essentially to be regarded as an instrument embodying a settlement of rights between the contestants, which also satisfies the interests of public policy, by which can only be understood, in relation to any unsettled or frontier area, the general administrative policy of the Government".
These observations have some relevancy to this case. Even though the discussion of this question is confined to my judgment in the present cases, and the conclusion does not form the basis of the decision of the Court, yet it may be of some use in elucidating the matter in some later case. I conceive that it is by no means illogical, and from the point of view both of justice as well as of sound administration generally, it may in certain areas be by no means unwise, that the power to revise decisions by a Deputy Commissioner upon recommendations by a jirga should be placed in the hands of a higher executive authority, and that it should not be confined within the four corners of an appeal. Consequently if the conditions which make inquiry by jirga into criminal offences an appropriate mode of investigation of such offences for the purpose of imposition of punishment by the State be postulated, then I do not think that it can be denied that the mode of reviewing of convictions and sentences which has been laid down in the Frontier Crimes Regulation is appropriate to the requirements.
That in certain areas
the conditions which rendered it necessary to maintain a system of
investigation of crimes for the purpose of imposing punishments at the hands of
the State, in the manner which was traditional in those areas, still continue
to exist can hardly be denied. If there be any doubt or difficulty, in the
matter, it will in my opinion be found to affect only the question of the area
within which or the persons to whom such a system may appropriately be applied.
It is common knowledge that as the power of the British extended from Bengal in
the East to the Khyber Pass in the West, in a period extending over something
like a hundred years the British Administrators left behind them settled areas,
and by successive stages, brought under their administration further areas
which had up to that time been under less elaborate administration, and in some
cases under no administration at all. In course of time, the eastern provinces
of
The North‑West
Frontier Province and
The High Court judgments are agreed that by placing it within the power of the Commissioner or the Deputy Commissioner to decide that a case should go before a jirga and be withdrawn from the jurisdiction of the ordinary Courts, the law has placed a naked and uncontrolled power of an arbitrary nature in their hands which was capable of producing inequality as between citizens placed in exactly similar circumstances. In coming to this conclusion, they have in my opinion overlooked the full force and effect of the words requiring that before taking a decision to this effect, the authorities should have formed the opinion that it is inexpedient that the case should go before the ordinary Criminal Courts. These authorities would be expected to exercise the power thus given to them by reference to all the considerations arising in relation to each case coming before them for an order under section 11. The word "inexpedient" is clearly not to be understood as making it a mere matter of short‑sighted policy to gain a particular result. Expediency in this context is a matter to be judged widely in relation to all applicable considerations.
It has been urged that in many cases, the authorities have acted ‑ merely because they wished to secure a conviction and knew that the evidence was such as would not satisfy a Court operating under the Code of Criminal ‑Procedure and the rules of evidence under the Evidence Act. But that is clearly not the same thing as saying that the authority was anxious to secure the conviction of an innocent person. There is an illuminating sentence in the judgment of the High Court in the case of Khair Muhammad Khan v. The Government of West Pakistan, which is printed in the paper‑book of Sabz Ali's appeals, where speaking of the procedure adopted by jirgas, the learned Judge observes as follows:‑
"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 difference between
the attitude of a jirga when entering upon an investigation and that of a Court
acting under the Code of Criminal Procedure and the law of evidence appears
with great clearness in this statement. Only too often the ordinary Court
considers that its d4ty is merely to produce a judgment upon strictly
admissible evidence.
Therefore, it may be a fallacy to suppose that by reference of a case to jirga, ascertainment of the truth is prejudiced. On the other hand, it might often be made easier. It follows that such a reference is not necessarily to the disadvantage of an accused person and certainly it can only rarely be so in a‑case where such person is innocent.
This is not say that the power under section 11 is not capable of abuse. Indeed, in one of the cases which have come under examination in these appeals, it does appear that the conditions which I may compendiously describe as "frontier conditions" are wholly absent, and the crime alleged has been committed not merely in a settled area but in old settled towns, and in all probability involves no evidence other than that of persons living in settled areas. The crime alleged is one of misappropriation of money, involving no violence. It may be a matter for consideration in revision by the Commissioner whether the reference in the case is appropriate, but a mere abuse of a statute is y certainly not sufficient for avoiding the statute on any ground relatable to such a provision as Article 5 of the Constitution of 1956.
For these reasons, I am of the view that section 11 of the Regulation is not a discriminatory provision inasmuch as treats of actual conditions existing in the areas in question, where the two separate jurisdictions, namely, the modern and the traditional, are both necessary, and the exercise of a choice as to which jurisdiction should apply to a particular case is entrusted to highly responsible officers, who are required by the statute to act upon a principle of expediency, having regard to the general administration of the area including the dispensation of justice in the particular case.
A word may be added regarding the new practice of appointing officials and Magistrates to be as members of jirga. Such a procedure may be thought to be inconsistent with the views expressed above as to the need for the jirga system in frontier areas. The appointment of Magistrates is now being' made under a legislative sanction which has become a part of the Regulation itself, and the Regulation as a whole not being contrary to the requirements of Article 5 of the Constitution of 1956, it follows that this amendment is equally saved. It may appear that this amendment does not in fact implement the purposes which underlay the enactment of the Regulation, but y that question does not affect the vires of the legislation. Moreover, it may be that the legislature has resorted to this device in order to introduce into the jirga system 'some of the practices and principles which lie at the foundation of the administration of justice by the ordinary Courts. In that view, the provision may be one in aid of gradual modernisation of ideas of justice in the areas concerned.
These reasons are sufficient for the disposal of the case of Malik Toti Khan and Mehrban Khan. It has not been shown to our satisfaction that the reference of the case by the Deputy Commissioner to a special jirga after the failure of the previous order of remand to the first jirga constitutes an illegality so as to vitiate the order of conviction (vide section 11 (3) of the x Regulation). In any case, that is a matter, which the Commissioner is competent to deal with. Accordingly, on the view I take, the appeal of the District Magistrate of Sibi against Malik Toti Khan and Mehrban Khan should be allowed and the writ issued by the High Court should be recalled.
In the case of Dosso and Muhammad Khan, the position is materially different in so far as the trial and all proceedings up to the conviction were held in a "special area" over which the High Court had no jurisdiction. It follows that the High Court had no authority to decide whether the trial and conviction were legal or otherwise. The only matter of which they could be seized was whether these persons were properly held in custody by the Jailer at Machh. For the decision of that question the learned Judges should have referred to sections 15 & 16 of the Prisoners' Act of 1900. The Jailer at Machh was competent to give effect to a warrant for the detention of these two persons, according to the tenor of the warrant. Such a warrant under the official signature of a proper officer is by itself sufficient authority for holding these persons in custody. The judgment in the case does not show that the warrant was ever examined, much less that it was found to suffer from defect of any kind, and consequently the order for release of these two persons was clearly incorrect. It must accordingly be set aside and the appeal allowed for that purpose.
AMIRUDDIN AHMAD, J.‑These four appeals arise out of orders made by the High Court of West Pakistan on petitions for issue of writs against convictions and orders made under the Frontier Crimes Regulation (III of 1901). As the orders of the High Court are based on Articles of the Constitution of 23rd March 1956 relating to Fundamental Rights given under Part of the said Constitution and the points involved are similar, the four appeals were heard together.
Appeal No. 1 of 1957 is a certificated appeal from the Quetta Circuit of the High Court, in which the respondents were convicted under section 376 of the Pakistan Penal Code and sentenced to five years' rigorous imprisonment by the District Magistrate of Loralai in the special areas, on the basis of an award by a jirga under the Frontier Crimes Regulation, but confined in the Machh Jail within the jurisdiction of the High Court. The High Court refused the prayer for quashing of conviction and sentences, but held that it was a detention under an illegal order as being repugnant to Article 5 of the Constitution and void under Article 4, and therefore the consequent detention was also illegal and as it was within the jurisdiction of the Court, a writ of habeas corpus was issued.
Criminal Appeal No. 60 of 1958 is by special leave of this Court from an order of the Quetta Circuit of the High Court. In this case the respondents were convicted by the District Magistrate and Deputy Commissioner, Sibi, on the basis of an award by the Council of Elders under the Frontier Crimes Regulation for instigating the murder of one Zarif and complicity in it under section 302 read with section 109 of the Pakistan Penal Code and sectenced to five years' rigorous imprionment with a fine of Rs. 500. The convictions and sentences were set aside by the High Court as being repugnant to Articles 5 & 4 of the old Constitution and the respondents were directed to be treated as under‑trial prisoners.
Criminal Appeal No. 67 of 1958 is by special leave of this Court against an order of the Peshawar Bench of the High ` Court. The respondent was charged with offences under sections 409 & 420 of the Pakistan Penal Code and the case was referred by the Deputy Commissioner to the Council of Elders under the Frontier Crimes Regulation. The respondent applied for an injunction in a civil suit before the Sub‑Judge for restraining the Government from taking action under section 11 of the Frontier Crimes Regulation, but the prayer was refused. The High Court on appeal granted temporary injunction and proceedings before the jirga came to a halt. The respondent then filed a petition under section 223‑A of the Government of India Act, which gave the powers of issuing a writ to the High Court similar to those given by Article 170 of the Constitution of 1956, and the Peshawar Bench of the High Court quashed the proceedings before the jirga holding sections 11 to 20 of the Frontier Crimes Regulation as repugnant to Article 5 of the Constitution of 1956 and holding that the reference to the jirga was void.
Criminal Appeal No. 24
of 1957 is by special leave of this Court from an order of the High Court of
West Pakistan,
These appeals came up for hearing before the Court on the 13th October 1958, when a radical change had been effected in the Government of the country, which had a far reaching effect on the laws of the land. The President of Pakistan, by a proclamation dated the 7th October 1958
(1) abrogated the Constitution of 23rd. March 1956 ;
(2) dismissed the Central and Provincial Governments with immediate effect ;
(3) dissolved the National Parliament and Provincial Assemblies ; and
(4) placed the whole country under Martial Law and appointed the then Commander‑in‑Chief as the Chief Martial Law Administrator of Pakistan.
On the 10th October 1958, the President promulgated the Laws (Continuance in Force) Order, which was to take effect immediately upon the making of the proclamation of 7th October 1958.
We are now to decide these appeals in the light of the change in the law brought about by the new Order becoming effective.
According to Continental Legal thought in Philosophy and Jurisprudence as represented by Hans Kelsen such a change has the effect of changing not merely the Constitution but the entire legal order. The laws that have been continued by the sub‑,g sequent order are not identical with the old laws, because the reason for their validity is different and the continued laws receive their validity exclusively from the new order, subject to limitations put by the new order.
Article II of the
Continuance of Laws Order provides that notwithstanding the abrogation of the
Constitution and subject to any order of the President and Regulation made by
the Chief Administrator of
It was argued in one of
the appeals on behalf of the respondent that as under Article II of the Order,
One of the arguments raised in Appeal No. 24 of 1957 was that the order of reference to jirga made by the Deputy Commissioner does not say that it was expedient to make such a reference. The question of expediency arises only when the reference is made under section 11 of the Frontier Crimes Regulation, but in this case it was at the instance of the Public Prosecutor and the reference was made under section 15, subsection (2) of the Regulation, which leaves .no option with the Deputy Commissioner to refuse when asked to make a reference. In Appeal No. 60 of 1958 it was argued that the Deputy Commissioner having once remanded the case to a jirga was incompetent under the Frontier Crimes Regulation to make a second order of remand. I am unable to accept this proposition, as the first remand became ineffective, the jirga having expressed their inability to submit their final award, as they thought that their minds were greatly prejudiced by the approach of different persons on behalf of the parties and returned the case. In the circumstances I think the second remand was competent.
These appeals, which must be deemed to be a continuation of the proceedings originated by applications for writ before the High Court, and not provided for by the Order, abate under Article II, clause 7 of the Order. The result is that the parties are relegated to the position at which they were at the date at which the applications for writs in these appeals were made. As by the Laws (Continuance in Force) Order, the Frontier Crimes Regulation along with other laws has been continued freed from the trammels imposed by the late Constitution, I would order that the convictions and sentences in Appeal No. 1 of 1957 and Appeal No. 60 of 1958 will stand, and the trials before the jirga in Appeal No. 67 of 1958 and Appeal No. 24 of 1957 will proceed in accordance with the provisions of the Frontier Crimes Regulation.
In accordance with the judgments of the majority, the proceedings for writs in each of these cases are held to have abated. The result is that the direction made by the High Court in the case of Sabz Ali and another (Criminal Appeal No. 24 of 1957) and the writs issued by the High Court in the other three cases are hereby set aside. There will be no order as to costs.
A. H. Order accordingly.
Go to Index | LL. B. – I | LL. B. – II | LL. B. – III | LL. B. Directory | Home