1. G. SAFDAR SHAH, J.-The background in which the petitioners have come up to this Court praying for leave to appeal against the judgment of the Peshawar High Court, dated 22-4-1979 is as under: In the year 1943 late Mohibullah Khan, the brother of the two petitioners herein, was murdered by respondent Haji Amirzada and his compatriots. The Political Agent, Malakand, accordingly tried respondent Amirzada and others under section 302, P. P. C,, and in the end convicted Amirzada and sentenced him to 14 years' R. I., as well as declared him as `dushmart' of the petitioners with direction that after having served the said sentence he shall not enter his village Batkhela of which village the petitioners also were the residents. After the release of Amirzada from Jail (as he served out his said sentence of imprisonment) he came back to his village Batkhela of which event the Lawyer Magistrate, acting as Deputy Commissioner, Swat, Ranizai, took cognizance and instituted an inquiry under section 17/19 of the Provincially Administered Tribal Areas Criminal Law Special Provisions Regulation, 1973, in order to ensure that no breach of peace is committed by either of the parties. At the conclusion of the inquiry, the learned Lawyer Magistrate, vide his order dated 6-2- 1976, directed the petitioners and Haji Amirzada to furnish bonds in the sum of Rs. 1,00,000 each for keeping peace or in default to suffer R. I. For two years.
2. Being aggrieved of the said order, the petitioners challenged the same in an appeal filed by them before the Commissioner, Malakand Division, who accepted the same vide his order, dated -3-3- 1976, and consequently set aside the order of the Lawyer Magistrate. Haji Amirzada Khan felt aggrieved of the said order, and challenged the same in revision before the Deputy Secretary III Home and Tribunal Affairs, Peshawar, who vide his order,) dated 26-1-1977 accepted it, and consequently set aside the order of the A Commissioner, Malakand Division, and restored the one passed by the Lawyer Magistrate on 2-3-1976. Of this order the petitioners felt aggrieved and consequently challenged it in the Constitutional jurisdiction of the High Court, but their petition was dismissed, vide judgment dated 22-4-1979.
3. In the High Court two contentions were urged on behalf of the petitioners against the order passed by the Deputy Home Secretary to the N.-W. F. P. Government;
(1) that the said functionary of the Government had no jurisdiction in the matter ; and
(2) that the order, dated 16-9-1949, passed by the Political Agent, Malakand, under F. C. R.
4. Regulation, 1901 had become final and consequently the same could not be re-opened after the repeal of the said enactment by Frontier Crimes (Repeal) Regulation, 1973.
5. As regards the first contention, the petitioners seem to have given up the same in the High Court, after the learned counsel for the respondent was able to place before the Court Notification No. K.
6. C. 3-2I/71-S. O. (Judi.) issued by the Government of N: W. F. P. Home and Tribal Affairs, on 4-3-1976, in which, exercising power under Article 139 of the Constitution, the Govern--ment had delegated to the Deputy Secretary Home and Tribal Affairs Division the jurisdiction to hear revision applications against the orders passed by the Divisional Commissioners. The learned counsel, however, wished to argue the same point before us. But when we confronted him with the fact that in the High Court he had given up the said point he rightly did not press his contention in that behalf.
7. As regards the second contention urged by the petitioners, reliance was placed on their behalf in the High Court on section 4 of the West Pakistan General Clauses Act, 1956 and section 7 of the aforesaid Regulation, 1974 which in relevant parts respectively reads as under :- "4.--(1) Where this Act or any other West Pakistan Act repeals any enactment then, unless a different. Intention appears, the repeal shall not-
(a) -------------------
(b) affect the previous operation of any enactment so repealed or any--thing duly done or suffered thereunder ; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or
(e) .---------------------- (2)--------------------------"
8. "7. Certain laws to cease to operate.-(1) If, immediately before the commencement of this Regulation, there was in force in the said Areas any law, instrument, custom or usage having the force of law corresponding to the provisions of any of the laws applied to those Areas by this Regulation, such law, instrument, custom or usage shall, upon such commencement, cease to have effect in those Areas.
(2) Nothing in subsection (1) shall affect--
(a) the previous operation of any such law, instrument, custom or usage ; or (b) .
9. (b)--------------------
(c) any penalty, forfeiture or punishment incurred in respect of any offence punishable under such law, instrument, custom or usage ; or
(d) any investigation, proceeding or remedy in respect of any such penalty, forfeiture or punishment, and any such investigation, pro--ceeding or remedy may be instituted ; continued or enforced and any such penalty, forfeiture or punishment may be imposed as if subsec--tion (I) had not come into force."
10. The learned Judges of the Division Bench of the High Court, however, did not subscribe to the said contention and rejected it thus; "This argument, though attractive at the first sight, overlooks that the all important question that the new law, namely, Provincially Administered Tribal Areas Criminal Laws (Special Provision)
11. Regula--tion, 1975, is self-contained code of procedure in those areas and inter alia provides for security for keeping the peace and against the extension of the Pakistan Penal Code and the Code of Criminal Procedure to the area would make the killing of a dushman an offence, within the cognizance of the Criminal Courts, crucial point is as to when such killing is going to take place. If it had taken place already before the extension of the aforementioned laws then it could have been argued that this was a liability which the killed man had already incurred under the custom. In the case of killing after the enforce--ment of these laws such an argument will not be available for there is nothing in the Laws that are now in force which will permit the killing of a dushman by a private person."
12. In seeking leave to appeal against the judgment of the High Court. Mr. Muhammad Shafiq Khan, the learned counsel for the petitioners, urged the same contention before us saying that the High Court has misconstrued the true scope and connotation of section 4 of the General Clauses Act, 1956, as well as section 7(2) of the aforesaid Regulation, 1974, and consequently erred in endorsing the patently wrong order passed by the Deputy Secretary III Home and Tribal Affairs Division to the Government of N.-W. F. P. He argued that in accordance with the order of the Political Agent, Malakand dated 16-9-1949, respondent Amirzada no doubt served out the sentence of imprisonment awarded to him, but in disregard of the ficding recorded in that order to the effect that he was the "dushman" of the petitioners, he cam back to village Batkhela and consequently the Lawyer Magistrate was in error to have asked the petitioners to furnish security for keeping peace in order to ensure that they did not resort to taking revenge from Amirzada, who had killed their brother. In support of his contention, the learned counsel relied on section 4 of the General Clauses Act, as well as section 7(2) of the aforesaid Regulation of 1974.
13. Now even if section 4 of the General Clauses Act is ignored for the present, sub-clauses (c) and (d) of subsection (2) of section 7 of the Regulation would prima facie support the contention of the learned counsel as the words "any penalty, forfeiture or punishment incurred in respect of any offence punishable under such law, instrument, custom or usage" appearing in sub---clause (c) of subsection (2) of the said section would seem to provide material in support of the said conclusion.
14. Respondent Amirzada had, in view of the order passed by the Political Agent, Malakand, on 16-9- 1949, incurred the penalty of having been declared the 'dushman' of the petitioners, andconsequently the question is whetherin the High Court Subsection (2) of section 7 of the Regulation of 1974 can be said to have beenrightly construed.
15. The learned counsel for the Caveator argued that under the F. C. R., 1901, there existed no provision under which the Political Agent, Malakand could declare Haji Amirzada as the 'dushman' of the petitioners. He contended that after having served out the sentence of imprisonment awarded to him, Amirzada could not be prevented from returning to his village, as the order in that behalf passed by the Political Agent, Malakand, would be tantamount to subjecting him to double jeopardy, as well as discriminatory treatment which is not in accordance with the Constitutional guarantees given to, the citizens of Pakistan. The learned counsel for the petitioners, when we questioned him in that behalf, could not furnish a satisfactory answer, except that he relied on the custom of the area, and contended that no one bad questioned the existence of the said custom for over a century, and thus judicial notice may be taken of the fact that the said Customary Law did exist in the area and in pursuance of which, Haji Amirzada was declared as dushman of the petitioners with the necessary consequence that so long as he failed to compromise with them, the blood-feud owing to the murder by him of their brother Mohibullah Khan, he would enter the village Batkhela at his own peril, as under the Customary Law they would be at liberty to kill him in revenge.
16. Now from the said various contentions urged by the learned counsel for the parties, we feel that this case does involve a question of law of some public importance (concerning the residents of Malakand Agency) which needs an authoritative pronouncement of the Court. The further reason for which we have been persuaded to grant leave to the petitioners is that the learned Judges of the High Court, which constituted the Bench in this case, had earlier in Writ Petition No. 578 of 1978, decided on 19-12-1978, recorded a contrary conclusion in respect of identical questions, and their said judgment has been filed on the record of this case. In these circumstances, leave is granted to the petitioners to consider the said various questions. There is no need to order the petitioners to deposit any amount by way of security for costs, as the petition relates to questions of criminal law.
17. It is directed however, and to which direction the learned counsel for Haji Amirzada has agreed, that Amirzada shall not enter village Batkhela, and in order to ensure that he abides by this direction he would furnish to the satisfaction of D. C., Malakand, a security bond in the sum of Rs.
18. 1,00000 with two sureties in the like amount. With this modification the order, dated 6-2-1976 passed by the Lawyer Magistrate, Malakand, is fully maintained. But needless to say that this order, which is now being passed, shall not be construed by the parties herein to mean as a licence to resort to any violence or further blood-shed. The case will be heard on the present record. However, the parties would file their respective concise statements with liberty to them to file any additional documents on which they would wish to reify in support o f their respective cases.