NUR AHMAD KHAN Versus THE STATE
The circumstances in which this writ petition has arisen are as follows:‑
1. It is alleged that on 10‑4‑1973, the Assistant Commissioner, Marri Area, accompanied by some members of the levy personnel, left Tambu for Kahan in Marri area on a jeep. Near the Kola Boha Gbati. they were fired upon by some unknown persons, but no body came to grief. The Assistant Commissioner, along with his party, returned to Kohlu and directed his Tehsildar to enquire into the matter. The said Tehsildar submitted his report on 11‑4‑1973, mentioning the culprits who had resorted to the firing All that was mentioned about the petitioners, who are closely related, was that they were abettors. The main culprits have eluded apprehension up to this time. However, on I1‑8‑1973, the District Magistrate, Sibi, referred the case as against the present petitioners to the Council of Elders to give findings on some questions, including whether the petitioners had abetted the com mission of the crime. The petitioners objected to the nomination of the members of the Council of Elders on the ground that four of the members were from levy personnel and the 5th was ill‑disposed towards them. The objections, however, were turned down. The same day, the Council of Elders, on the basis of the report of. the Tehsildar, gave a unanimous award against the petitioners. The petitioners raised objections against the award, which also came to be turned down. On 5‑10-1973, the District Magistrate, Sibi, accepted the award, and convicted the petitioners under sections 307/109, P. P. C. read, wish section 12(2) of the F. C. R., and sen tenced them to undergo R. I. for 5 years each. The petitioners challenged the said order before the Commissioner, F. C. R. through a revision petition, which came to be dismissed on 4‑3‑1974, culminating in the filing of this writ petition.
2. The first contention raised by Mr. Karam Ellahi, learned counsel for the petitioners, was that the very reference to the Council of Elders was illegal inasmuch as the A. D. M. had failed to say therein that it was in expedient that the question of the guilt or innocence of the petitioners should be tried by an ordinary Court of law.
3. It will, therefore, be necessary to reproduce section 11 of the Frontier Crimes Regulation, 1901, which reads as follows:‑
"(11) (1) Where, in the opinion of the (Chief) Commissioner or Deputy Commissioner, it is inexpedient that the question of the guilt or innocence of any person or persons accused of any offence, or of any of several persons so accused, should be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898, the Deputy Commissioner may, or, if the (Chief) Commissioner so directs, shall, by order in writing, refer the question to the decision of a Council of Elders, and require the Council to come to a finding on the question after such inquiry as may be necessary and after hearing the accused person.
(2) Where a reference to a Council of Elders is made under sub section (1), the names of the members shall, as soon as may be, be communicated to the accused person, and any objection which he may then make to any such member shall be recorded. The Deputy Commissioner shall consider every objection made by an accused person under this subsection, and, may, in his discretion, either accept or reject the objection provided that, in the latter case, he shall record his reasons for so doing.
(3) On receipt of the finding of the Council of Elders under this section, the Deputy Commissioner may‑
(a) remand the question to the Council for a further finding; or
(b) refer the question to a second Council; or
(c) acquit or discharge the accused person or persons, or any of them; or
(d) in accordance with the finding on any matter of fact of the Council, or of not less than three‑fourth of the members thereof, convict the accused person or persons, or any of them, of any offence of which the facts so found show him or them to be guilty .
Provided that a person discharged, under clause (c) shall not be liable to be retired for any offence arising out of the same facts after the expiry of two years from the date of such discharge."
He sought support for the proposition from Khena Ram v. The Commis sioner, F. C. R., Quetta Division and another (P L D 1969 Quetta 24) and Ramesh Gul v. The Crown (P L D 1955 Pesh. 1).
4. lithe earlier case, after taking notice of two cases, namely, Khan Abdul Akbar Khan v. The Deputy Commissioner, Peshawar (P L D 1957 Pesh. 100 ) and Muhammad and another v. Divisional Commissioner, Hyderabad Division (P L D 1966 Kar. 424), Dorab Patel, J,, observed: '` . . . . . the ratio decidendi of the judgment cited is that any provisions taking away the jurisdiction of the ordinary Courts should be construed very strictly. This principle is applicable to the construction of section 11, therefore the judgment cited is relevant to the question for deter mination before me. I am in respectful agreement with the observations of the Full Bench and of the Division Bench in the judgments cited, and I hold that the E. A. C.'s order of reference dated Ist June:, 1968, is illegal on the ground that it does not state that it was inexpedient to try the petitioner in the ordinary Courts."
5. The same view was taken in the ease of Hamesh Gal, referred to earlier. The learned Advocate‑General had nothing to say in that context. That by itself would go to the root of the case.
6. It vas also contended by Mr. Karam Ellahi that the petitioners were not heard. The award of the Arga bears it out. All that has been said therein is that the members of the Council were not acceptable to the petitioners and they did not want the award to be given by them. The award goes on to say, thereafter, that thus it would appear that they were not prepared to make any statement. There is also nothing to indicate that they bad even for form's sake asked the petitioners to produce any witness. According to section t 1 of the Frontier Crimes Regulation, it was incumbent on the Council of Elders to hear the petitioners. The jirga had nothing with it except the report. There is a string of authorities that if a case has been drawn into the Council of Elders, and there is a violation of any mandatory requirement on the part of the Jirga, the resulting finding would be nullified.
7. The learned Advocate‑General referred to the cases of Pir Badshah and another v. State (P L D 1963 S C 93) ; The State v. Nawab Gul (P L D 1963 S C 270) and Muhammad Akram and another v. The State (P L D 1963 S C 373).
8. All these cases were examined in Sardar Nawab Haji Muhammad Khan and another v. Commissioner, Frontier Crimes Regulation, Quetta Division and others (P L D 1964 Lah. 401), and it was observed: " . . . even an administrative body is under a legal obligation to deal with all the applicants before it fairly, justly and equitably. In particular, if any legal requirement is laid down, the authority concerned is under an obligation to follow it. Though, therefore, a Jirga conducting an inquiry under the Regulation is in no sense a judicial or quasi judicial body, it is, in my opinion, bound to observe any requirements laid down by the Regulation." it came to be further observed on page 414 of the report: "It would further appear to me to follow that if there is a violation of any mandatory requirement on the part of the Jirga, the resulting finding is nullified, and that any order passed by the Deputy Commissioner or the Commissioner on the basis thereof will be without lawful authority andof no legal effect."
9. I am, therefore, of the opinion that the impugned orders were without lawful authority and of no legal effect. I will, therefore, quash the impugned orders and allow the petition, but with no orders as to costs. They may be released forthwith if not required in any other case.
S. A. H. Petition accepted.