FAZA KHAN Versus AHMAD KHAN

MUHAMMAD AFZAL ZULLAH, J. ‑‑‑This appeal through leave of the Court is from judgment dated 20‑5‑1984 of the Peshawar High Court in a murder case, whereby respondents' (Nos. 1 and 2) Constitution Petition arising out of proceedings under the estwhile Frontier Crimes Regulation (Regn No.III) of 1.901, was party allowed.

2. The question for determination is whether, on conviction under section 302, P.P.C. by the forum under the Regulation the said respondents could be directed never to return to the locality viz. "between Malakand and Tari" after serving the sentence and could also be declared a "Dushman" by virture of Tribal Custom with the implication that if they returned to the said place and were killed or got killed by the complainant side, the latter would not be guilty of this subsequent offence.

The provisions of the relevant Custom read as follows:‑‑

(Reproduced from the booklet title RAWAJ NAMA MALAKAND AGENCY" which has been relied upon by all the counsel as containing the correct version of the custom).

3. Sections 11, 12, 36 and 37 of the F.C.R. brought under discussion at the Bar, are also reproduced below:‑‑

"11. Criminal references to Council of Elders‑‑(1) Where, in the opinion of the Commissioner or Deputy Commissioner, it is expedient that the question of "the guilt or innocence of any person or persons accused of any offence, or of any several persons so accused, should be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898, the Deputy Commissioner may or if the Commissioner so directs, shall, by order in writing, refer the question to the decision of a Council of Elders, and require the Council to come to a finding on the question after such inquiry as may be necessary and after hearing the accused persons. The members of the Council of Elders shall, in each case, be nominated and appointed by the Deputy Commissioner.

(2) Where a reference to a Council of Elders is made under subsection (1) and the members of the Council have been nominated, the names of the members so nominated shall, as soon as may be communicated to the accused person, and any objection which he may then make to the nomination of any such member shall be recorded. The Deputy Commissioner shall consider every objection made by an accused person under this subsection, and may, in hi‑, discretion, either accept or reject the objection provided that in the latter case, he shall record his reasons for so doing. The Deputy Commissioner shall, after disposing of any objection made by the accused person, appoint the members of the Council.

(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 which the facts so

Provided that a person discharged under clause (c) shall not be liable to be retried for any offence arising out of the same facts after the expiry of two years from the date of such discharge.

12. Punishment on conviction on finding of Council.‑‑‑(1) Where the Deputy Commissioner convicts a person under section 11, subsection (3), clause (d) he may pass upon him any sentence of fine.

(2) Where the Deputy Commissioner so convicts a person of an offence mentioned in the second schedule, he may, whatever may be the punishment prescribed for offence, sentence the person, in lieu of or in addition to tine, to be imprisoned for a term which may extend to seven years, or, subject to the provision of section 393 of the Code of Criminal Procedure, 1898, to be whipped or to be whipped and imprisoned for a term which may extend to five years, or to be transported for a term which may extend to seven years, and where he so convicts a person of an offence punishable with transportation or with imprisonment for a term exceeding seven years, he may, subject to confirmation by the Commissioner, sentence the person to a term either of transportation or of imprisonment exceeding seven years but not exceeding fourteen years:

Provided first, that a sentence of whipping shall not be passed on any person so convicted of an offence under sections 121, 121‑A, 122, 123, 124‑A, 125, 126, 127, 144, 150, 216‑A, 400. 401, 402, 494, or 495 of the Indian Penal Code (now the Pakistan Penal Code);,

Provided, secondly, that a sentence of transportation or imprisonment for an offence shall not be for a longer term than that (if any) prescribed for the offence; and

Provided, thirdly, that a sentence of transportation shall not be passed for an offence which is not punishable with transportation or with imprisonment for a term which may extend to seven years or more.

(3) In cases of convictions under section 302 or 396 of the Pakistan Penal Code, the immovable property of the accused shall be liable to forfeiture to the Government.

36. Power to require persons to remove in certain cases.‑‑‑Where, in the opinion of the Deputy Commissioner, any person,‑‑

(a) is a dangerous fanatic; or

(b) belongs to frontier tribe and has no ostensible means of subsistence or cannot give a satisfactory account of himself; or

(c) has a blood feud; or

(d) has occasioned cause of quarrel likely to lead to bloodshed; the Deputy Commissioner may, by order in writing, require him to reside beyond the limits of the territories to which this Regulation extends, or at such place within the said territories as may be specified in the order:

Provided that, if the person has a fixed habitation in the place which the Deputy Commissioner requires him to leave, an order under this section shall not be made without the previous sanction of the Commissioner.

"37. Penalty for breach of certain orders.‑‑‑ Whoever contravenes the provision of section 31, or disobeys an order under section 21 or section 32, or a prohibition under section 34, or a requisition under section 36, shall be punishable with imprisonment for a term which may extend to six months, and shall also be liable to fine which may extend to one thousand rupees.

4. At this stage the direction and declaration contained in the judgment of conviction in this case which was impugned before the High Court in the Constitution petition, need also to be noted. They are as follows:‑

"On expiry of their terms of imprisonment, they will be debarred from residing within the area falling between Malakand and Trai towards Bakhela.

'They are also declared as 'Dushmans' of the complainant and his sons."

Learned counsel for the complainant‑side contended: that by "Letter No.1690‑F, dated Simla, the 23rd June 1902, issued by the Secretary to the Government of India, Foreign Department to the Hon'ble the Chief Commissioner and Agent to the Governor‑General in the North‑West Frontier Province" it was provided that the tribal custom was not intended to be interfered with, that under the Custom the direction and declaration with the necessary implications, (objected to be by the convicts) could be made in the order of conviction: that sections 11 and 12 of the F.C.R. do not prohibit the same and sections 36) and 37 thereof, permit the same that the Deputy Commissioner. when acting under section 11, has to accept and not upon the recommendations of the Councils of Elders (the Jirga and in these cases, it is not the respondent's case that no such recommendation was made; and Mat, notwithstanding the repeal of the Frontier Crimes Regulation, the laws re‑enacted in place thereof, have kept intact and alive, all the orders passed and liabilities incurred under the repealed law (i.e the F.C.R.).

5. Learned counsel for the convicts has argued that the letter of 1902 does not have the force of law‑it was only a promise by the British Rulers, that none of the provisions relied upon by the other side, authorises the direction and declaration made by the Deputy Commissioner, that the Deputy Commissioner could not pass any order to operate after the sentence of imprisonment was served out, that the repeal of the F.C.R. was without any saving provision hence after the convict respondents (Nos. 1 and 2) have served out the punishment for the offence, they are no more under any restraint by virtue of the direction and declaration, which were challenged in the High Court.

6. Learned Additional Advocate‑General has explained that under the F.C.R. the accused respondents could be convicted for the offence under section 302, P.P.C. They could also be subjected to the porhibition that they would not visit the specified locality. This was a preventive measure. But according to him, though the custom further permitted the declaration as `Dushman' with its implications, the law (F.C.R.) did not permit this part of the preventive action.

We agree with the position taken by the learned Additional Advocate -General. It is balanced and is in accord with the spirit of the relevant provisions of the F.C.R.

Section 11 (1) of the Regulation permits the reference of "the question" regarding the guilt or innocence" of accused in respect of "the offence" allegedly committed by the accused, to the Council of Elders (Jirga). That forum can examine only the said "question" under section 11. Its recommendation was to be confined to the same. question and nothing more. This is the purport of section 11. Similarly, the Deputy Commissioner when acting on the recommendation under sections 11(3) (d), had the jurisdiction to accept that part of the recommendation only which answered "the question" regarding the commission of the offence referred in subsection (1) of section 11. Any recommendation made beyond that limited question could not form part of the punishment, specific or implied, which was to be awarded to the convicts. Section 12 deals with the punishment. It does not permit such a declaration by the punishing authority, which would make the convict liable to be punished for the same offence after he had served the first sentence this time by the complainant side killing them if they return to their abode. This amounts to double jeopardy. As held in similar cases, when once a person has served life imprisonment for murder, death sentence cannot then be awarded.

Section 302, P.P.C. under which admittedly the conviction was recorded in this case, also does not permit any such declaration nor the Criminal Procedure Code authorise it. The Custom however, understandably permitted it but that is a subject of the past. The case was wholly governed by the Frontier Crimes Regulation. It had, it is to be acknowledged, given recognition to and enforced some of the customary law of the tribal people rather a fairly large and important part of the custom but not the whole of it. The Regulation did not enforce that custom which permitted a formal declaration as `Dushman' and the very serious implications, carried therewith.

The letter of 1902 did contain a promise and respect for the tribal customs but it cannot be accepted as valid argument that when the case was to be dealt with under the F.C.R. the said letter would authorise departure from the statutory provisions of the Regulation. Moreover, as already indicated, the letter did not promise `enforcement' of `all' customary laws nor the F.C.R. adopted all of them. The experience for over three quarters of a century also showed that the combined operation of the statutory law in the selected fields of custom did serve the purpose to an extent. Thereafter, realities of education, advancement and progress in every sphere of life and upgradation of standards amongst the tribal people, the changes towards settled conditions, are visible. To mention only one the chosen and other representatives from the tribal areas now function in the corridors of our legislative and administrative chambers, working side by side with others from the so‑called settled areas. They themselves take part in the making of the constitutional and other laws. The repeal of the Frontier Crimes Regulation itself is the proof positive of the vital progress and improvement that has taken place m these areas. In our view the F.C.R. read with the said letter of 1902 did not go to the extent advocated by the complainant‑side, and, now after the above referred changes and progress we will not put in it what it never contained.

7. The argument of the learned counsel for the complainant that the F.C.R. did not prohibit the declaration regarding "Dushman" with its implications, has not impressed us either. The Deputy Commissioner, as a state functionary could not do what was not permitted by the law. When incorporating the disputed declaration regarding "Dushman", he acted beyond the jurisdiction and power conferred on him by the law‑‑‑here, the Frontier Crimes Regulation.

Looked at from whatever angle, the disputed declaration in the judgment of conviction in this case and other cases under F.C.R. together with the customary implications were intended to be carried with the said declaration in such cases, are without lawful authority and without any legal effect. We declare it so.

8. The other question regarding the direction prohibiting the convicts from returning to their abode in the judgment of conviction, needs separate treatment. Section 36 of the F.C.R. permitted such an order to be made by the Deputy Commissioner. Clauses (c) and (d) of section 36 furnished grounds in this case for passing such an order. No one has denied that it was a clear case of "blood feud", and the parties had also "occasional cause of quarrel likely to lead to blood shed". The argument of the learned counsel for the respondents that such a direction could not form part of an order of conviction for an offence; is without force. There is nothing in the relevant law, which required such an order to be passed in an independent proceedings only. It could also be passed as a result of the inquiry and trial for the murder which itself was sequel to the blood‑feud. Other arguments of the learned counsel in this behalf, e.g., that the Commissioner did not give his approval, relate to facts, for which no material has been placed before us and thus are not entertainable.

9. One feature of this prohibitory order‑re‑entry of the, convicts in their abode, however, has given us anxious thought, namely that it' is a perpetual prohibition. After some research, a rule framed under section 62 of F.C.R. has been found which requires that the period has to be fixed. The rule reads as follows:‑‑

"Rule. In every case in which an order of expulsion is made, whether directly by the Deputy Commissioner or in the case of a person who has a fixed habitation, with a view to obtaining the sanction of the Chief Commissioner, a period for the duration of the order of expulsion should always be fixed,"

It seems that earlier this rule was not taken note of. The convict respondents can even now approach the concerned authority by making an application for fixing the period under the said rule. As the learned counsel are not fully prepared on this question, they may also rely on any other available plea or provision of law.

With these observations, we uphold that part of the judgment of conviction of the respondents which prohibited them (the convicts) from entering and residing within the area falling between Malakand and Trai towards Batkhela this locality is their normal abode.

10. It is again clarified that this direction/prohibition in that judgment shall not carry with it, by implication or otherwise, any part of the custom relating to the declaration as "Dushman".

11. Before parting with this judgment, it needs to be mentioned that we have not dealt with the arguments relating to the saving provisions in the laws which repealed the F.C.R. and their effect. Firstly, because on the other crucial question of declaration of "Dushman" we have annulled the same on the touchstone of the F.C.R. itself; secondly, we have not been assisted enough on the subject of various repealing laws, the saving provisions and their effects. The entire position of the repealing and re‑enacted laws and their many amendments has not been presented in a comprehensive form; and lastly in this behalf, even there is no saving clause, the relevant provisions of the General Clauses Act would come into play.

With these remarks this appeal is dismissed with the foregoing orders and observations.

MA.K./F‑211/S Appeal dismissed.