NUR AHMED KHAN Versus THE STATE
The circumstances in which this writ petition has arisen are as follows:‑‑
1. The petitioners, who are closely related, were arrested on 21‑4‑1973 in connection with an incident in the Marri‑Bugti area. On 28‑5‑1973, they (were served with notices under section 40 of the Frontier Crimes Regulation to show cause as to why they should not be called upon to execute bonds for keeping good behaviour for a period of three years in the sum of Rs. 1,00,000 with two sureties each, in default whereof, they were to be detained in prison till the expiry of the said period. According to the said notices, the sureties were to be owning properties outside the Marri area. The allegation contained in the notices was that they were indulging in activities subversive of law and order, aimed at the lives of Government servants and the destruction of the Government property. On 29‑5‑1973, the petitioners gave replies to the notices in identical terms, repudiating the allegations, and asserting that they had been maliciously run down by certain specified utterers of forged tales who were on inimical terms with them. They also maintained that they were patriotic citizens. However, if they failed to inspire confidence, they should be permitted to seek shelter in the neighbouring Provinces of the Punjab or Sind. They also showed their willingness to furnish security if the terms of the bonds were reasonably modified, and their sureties could be from Marri area to which they themselves belonged.
2. On 9‑8‑1973, the Extra Assistant Commissioner and A. D. M. referred the question to the Council‑of‑Elders under section 11 of the F. C. R. to come to a finding on the question if the petitioners be called upon to execute bonds, and if so, in what amount. The same day the Council‑of‑Elders gave its award to the effect that the petitioners should execute bonds, but should be free to offer the sureties from the Marri area, but the persons identifying them should be from outside. They made no further recommendation apart from this. The said award was submitted to the A. D. M. concerned, who accepted the same on 10‑8‑1973. In ,this very context, it might be mentioned that the petitioners have not furnished the bonds, and as a result, they were directed to be detained for a period of three years. The petitioners then filed a revision petition before the Com missioner, F. C. R. which came to be dismissed on 4‑3‑1974, culminating in the filing of this petition.
3. It was contended by Mr. Karam Ellahi, learned counsel for the petitioners, that the enquiry conducted against the petitioners was totally vitiated because they were given no opportunity of showing cause, that the bonds were not required, and that they were neither allowed to examine any witness, nor had any witness been examined against them by the prosecution, thus precluding them from any cross‑examination. According to the learned counsel, the procedure prescribed under section 42 of the F. C. R. had therefore not been followed. The reply of the learned Advocate‑General was that as this was a reference to the Council‑of‑Elders under section 40 (2) (a), the procedure of enquiry under section 42 of the P. C. R. was not applicable.
4. Section 40 of the Frontier Crimes Regulation, 1901 reads as under:‑
"40.‑(1) Where the (Chief) Commissioner or the Deputy Commissioner is of opinion that it is necessary, for the purpose of preventing murder or culpable homicide not amounting to murder, or dis semination of sedition, to require a person to execute a bond for good behaviour or for keeping the peace, as the case may be, he may order the person to execute a bond, with or without sureties, for his good behaviour or for keeping the peace, as the case may be, during such period, not exceeding three years, as the (Chief) Commissioner or the Deputy Commissioner, as the case may be, may fix.
(2) The Deputy Commissioner may make an order under subsection (I)‑
(a) on the recommendation of the Council‑of‑Elders, or
(b) after enquiry as hereinafter provided.
(3) Where a person had been convicted in accordance with the finding of a Council‑of‑Elders of an offence mentioned in section 106 of the Code of Criminal Procedure, 1898, or punishable under section 302, section 304, section 307 or section 308 of the Pakistan Penal Code, the Deputy Commissioner at time of passing sentence, or the (Chief) Commissioner at the time of revising the sentence, may make an order under subsection (1) with respect to that person.
(4) Where the Deputy Commissioner makes an order under sub section (1) on the recommendation of a Council‑of‑Elders, he shall record his reasons for acting on the recommendation.
(5) Where the (Chief) Commissioner or the Deputy Commissioner is of opinion that sufficient grounds exist for making an order under subsection (1), he may either in lieu of or in addition to such odor, by order in writing, direct that the person concerned shall notify his residence and any change of residence in the manner prescribed by section 565 of the Code of Criminal Procedure, 1898, during such term, not exceeding three years, as may be specified in the orders."
Section 42 of the F. C. R. is in the following terms:‑
"42.‑(1) An inquiry for the purposes of section 40, subsection (2), or section 41, may be necessary, out of Court:
Provided that a person from whom it is proposed to require a bond under section 40, or the principal members of a family or faction from which it is proposed to require a bond under section 41, shall be given an opportunity of showing cause in Court why a bond should not be required, and of having his or their witnesses, examines there, and of cross‑examining any witness not called by himself or themselves who may testify there to the necessity or otherwise for the execution of a bond.
(2) Sections 112, 113, 115 and 117 of the Code of Criminal Procedure, 1898, shall not apply to an inquiry under this section, but the Deputy Commissioner shall record his order with the reasons for making it."
5. I agree with the contention of the learned Advocate‑General that the procedure under section 40 (2) (b) is to be followed, if there is an inquiry by the Deputy Commissioner or the A. D. M. himself, and. not in the cases which are referred to the Council‑of‑Elders, who can A form their opinion on the basis of a secret inquiry report or even hearsay evidence.
6. Mr. Karam Ellahi, learned counsel for the petitioners, referred to the case of Ali Muhammad v. Commissioner, F. C. R., Quetta Division (P L D 1964 Quetta 1) but the observations made therein will not be applicable to this case, as borne out from the following passage on page 4:‑
"At this stage, it might be mentioned that this is not one of those cases in which the impugned order was passed on the recommendation of the Council‑of‑Elders. In such case, no inquiry is contemplated."
Even the principle laid down in Sardar Nawab Haji Muhammad Khan v. Additional Commissioner and Commissioner, F. C. R., Quetta and others (P L D 1964 Lah. 401) will be of assistance. Similarly will be the case with Manzoor v. Federation of Pakistan, etc. (PLD1975SC66).
7. It was further contended by Mr. Karam Ellahi that the petitioners were not heard by the Council‑of‑Elders. The award clearly shows that the petitioners were given the hearing and the had admitted the correctness of the reply sent by them in reply to the notices. It also appears that the Jirga had made recommendations in regard to the terms of the bonds as suggested by the petitioners. That is also borne out from the order of the Revenue Commissioner, Baluchistan. It also appears from there that the Council‑of‑Elders had been nominated with the consent of the petitioners. There is also nothing to show from the record that the petitioners wanted to produce any witness from their side, and had been stopped.
8. The Frontier Crimes Regulation is law of expediency, and its decisions will not be interfered with by the superior Courts unless there is violation of any mandatory requirement on the part of the Jirga. See Sardar Nawab Haji Muhammad Khan v. Additional Commissioner & Commissioner, F. C. R., Quetta and others; The State v. Nawab Gul (PLD 1963SC270) and Pir Badshah v. The State (PLD 1963SC93). There is nothing to show that any of the mandatory requirements of the Regulation in question had been flouted. This being the situation, no interference will be called for.
9. In the result, I will dismiss the petition, but with no order as to costs.
S. A. H. Petition dismissed.