1. WAHIDUDDIN AHMAD, J.---This appeal by special leave is directed against the judgment of the West Pakistan High Court, Peshawar Bench, in Writ Petition No. 361 of 1963, which was dismissed on the 12th August 1965. It has arisen in the following circumstances:- On the 22nd July 1961, during the intense heat, two dead bodies in advanced stage of decomposition were discovered in the Khuds and ravines of fields adjoining the village Rahman in Daman Sandy tract of Thana Sadar of Dera Ismail Khan District. Mr. Riasat Ullah Khan, D. S. P., was informed of this fact. As the dead bodies could not be identified and were highly decomposed, they were buried after photograph and post-mortem examination. On the 9th August 1961, one Amir son of Ghulam Hussain, resident of village Bhaggor, District Sargodha, stated before the police that his father Ghulam Hussain son of Gaman, his brother Ghulam Shabir left their village about 21/22 days back and were missing. He was shown the photographs and clothes of the deceased which were identified by him as those of his father and his brother. He stated that the deceased and the appellants and litigation over immovable property in village Rangpur. He suspected the appellants to be murderers of the deceased. Thereupon, Alam Sher, Sona and Farid were arrested. On the 10th December 1962, the Deputy 'Commissioner, Dtra Ismail Khan, Nawabzada Muhammad Ayub Khan, referred the case to the Council-of-Elders under section 11 of the Frontier Crimes Regulation, 1901.
2. The Jirga was con--stituted of four persons, namely:-
(i) Mr. Abdur Rahman Khan, A. C., Dera Ismail Khan and Section 30 Magistrate (Chairman).
(ii) Mr. Niamat Ullah Khan, R. O. And M. I. C., Dera Ismail Khan.
(iii) Mr. Habib-ur-Rahman, Chairman, Union Council.
3. An objection was raised on the appointment of NawabzadaHamid Ullah Khan A.I-zai. This objection was accepted on the 17th December 1962. He was substituted by Hafiz Hamid Ahmad Khan, Lambardar of Dera Ismail Khan. The appellants made a statement before the Deputy Commissioner that they had no objection to the appointment of the Members of the reconstituted Jirga, and in token thereof they thumb-marked their statement. Similarly, the complainant also made a statement that he had no objection to the appointment of the Members of the reconstituted Jirga.
4. The Council-of-Elders, after examining eleven prosecution witnesses and 21 defence witnesses and after holding secret and open enquiries, recommended on the 25th June 1963, that Alam Sher and Farid be given full doss under section 302, P. P. C. And section 11, FC. R,, separately in each murder and further re--commended that the sentences should run consecutively and their property should also be confiscated because these are gruesome murders the cause of which was property. As regards Sona accused, the Council-of-Elders held that he had not come to the place of occurrence though he was in league with the above two accused. They, therefore, stated that it was for the Deputy Commissioner to treat him equally guilty or to award lesser punishment. The Deputy Commissioner, Dera Ismail Khan, by his order dated the 16th July 1963, convicted all the three accused, namely, the two appellants and Alam Sher under section 302/34, P. P. C. Read with sections 11 and 12 of the F. C. R. And sentenced Alam Sher and Farid to 14 years' rigorous imprisonment on each count and Sona to seven years' rigorous imprisonment on each count. The sentences were ordered to run concurrently. These sentences were confirmed by the Commis-- sioner, Dera Ismail Khan on the 3rd September 1963. This order was challenged in the High Court by the appellants and Alam Sher, in Writ Petition No. 361 of 1963 under section 491, Cr. P. C. And Article 98 of the Constitution which was dismissed on the 12th August 1965. Thereupon, the appellants file petition for special leave to appeal.
5. Leave was granted to them on the 21 December 1965, to consider the following question:--
(i) Whether Mr. Abdur Rashid Khan who had purported to exercise powers of confirmation of the conviction and sentence under the Frontier Crimes Regulation had no jurisdiction to do so. He was appointed Commissioner of Dera Ismail Khan on the 27th May 1963, and passed the impugned order of confirmation on the 3rd September 1963. The Frontier Crimes Regulation had been repealed before these dates.
(ii) What is the effect of the D. C. Dropping one Member of the council originally appointed and substituted him by another without inviting objections from the accused as required by section 11 of the F. C. R. Itself.
(iii) Whether at the time of the commission of the offence on the 21st July 1961, the Frontier Crimes Regulation was not applicable to the District of Sargodha where the petitioners resided and the offence of murder was, therefore, not punishable, inter alia, with confiscation of their property. The F. C. R. Was applied to Sargodha District in April 1962, and under Fundamental Right No. 4 such a punishment which was not part of the law of the area in question at the time the offence is alleged to have been committed, could not be added to the punishment in the relevant law.
6. Sh. Muhammad Shafi, learned counsel for the appellants, has not pressed the last two points on which leave was granted by this Court. The only point therefore, for consideration is whether Mr. Abdur Rashid Khan, the then Commissioner of Dera Ismail Khan who had confirmed the conviction and sentences of the appellants under the Frontier Crimes Regula--petition, was competent to do so. In this connection there are certain dates which are relevant for the decisions of this point.It will be noticed that the Jirga gave its award on the 25th June 1963. The Frontier Crimes Regulation was repealed on the 19 April 1963. The Deputy Commissioner awarded the sentences on the 15th July 1963. The Commissioner, Mr. Abdur Rashid Khan confirmed the sentences on the 3rd September 1963. He was appointed as Commissioner of Dera Ismail Khan on the 27th Nlay 1963.st th Sh. Muhammad Shafi, learned counsel for the appellants, has contended that the appointment of Mr. Abdur Rashid Khan as Commissioner on the 27th May 1963, after the repeal of the Frontier Crimes Regulation of 1901, was not valid for purposes of confirming the sentences awarded by the Deputy Commis--sioner, Dera Ismail Khan. According to the learned counsel, after the repeal of the Frontier Crimes Regulation, the Provincial Government was not competent to appoint any Commissioner under it. The contention of the learned counsel has no force. It is not disputed that wader section 12 (2) of the Frontier Crimes Regulation, 1901, the Deputy Commissioner is competent to sentence a person to term either of transportation or an imprisonment exceeding 7 years but not exceeding 14 years subject to confirmation by the Commissioner. The Commissioner is defined in section (c) of the said Regulation as under:-- `Commissioner' or `Court of the Commissioner' means the Provincial Government or such officer or officers as the Provincial Government may appoint in this behalf."
7. Thus it is quite clear that, the Commissioner is either the Pro--vincial Government or such other officer or officers as the Provincial Government may appoint in this behalf. In they present case, the Provincial Government, by a Notification No. 1/60-4(SOI)T.A/60 dated the 18th November 1960, appointed] Commissioner, Dera Ismail Khan Division for the Districts of Dera Ismail Khan and Bannu a, Commissioner for the purposes of the Frontier Crimes Regulation. The, notification is reproduced below:- "In exercise of the powers conferred on him by the entry in column 4 opposite to the entry `The Frontier Crimes Regulation, 1901' occurring in column 3 of Part II of the First Schedule to the North- West Frontier Province Law and Justice Regulation, 1901 (VII of 1901) read with section 3 thereof and in supersession of the West Pakistan Government, Home Department, Notification No. 1/60- H(SOI)TA/60, dated the 29th September 1960, the Governor of West Pakistan is pleased to appoint each officer mentioned in column 2 of the Schedule annexed hereto against Serial Nos. 1 and 2 thereof to be the Commissioner for the purposes of the Frontier Crimes Regulation, 1901, except sections 21 and 22 in the are as mentioned in column 3 thereof."
8. SCHEDULE S. No. Designation 1.
9. 2 3 1.
10. Commissioner, Peshawar Division.
11. Districts of Peshawar, Mardan, Kohat and Hazara.
12. 2.
13. Commissioner, Dera Ismail Khan Division Districts of Dera Ismail Khan and Bannu.
14. It is, therefore, perfectly clear that the Commissioner of Dera Ismail Khan Division was appointed as Commissioner for the purposes of the Frontier Crimes Regulation, 1901, in November 1960, much before the repeal of the Frontier Crimes Regulation. Any person holding office of the Commissioner of Dera Ismail Khan was, therefore, competent to act as Commissioner for the purposes of the Frontier Crimes Regulation, 1901. It is not dis--puted that Mr. Abdut Rashid Khanwas appointed as Commissioner of Dera Ismail Khan on the 27th May 1963. He was, therefore, competent to act as Commissioner for the purposes of Frontier Crimes Regulation if it was otherwise in force for purposes ofconfirming the sentences awarded to the appellants. The mere fact that he was appointed as Commissioner of Dera Ismail Khan after time the repeal of the. Frontier Crimes Regulation will not make any difference, if it is found that tire Frontier Crimes Regulation was still in force for purposes of completing certain investigations nr enquiries which had commenced before its repeal.
15. It was further contended by the learned counsel for the appellants, that the Frontier Crimes Regulation, 1901, having been repealed, the Commissioner had no jurisdiction to confirm the sentences under section 12 (2) of the said enactment In support of his contention the learned counsel has relied on two decisions. In the first place, by Las relied on a decision of Full Bench of the West Pakistan High Court in the case of Muhammad Bashir v. The Province of West Pakistan and another (PLD 1958 Lah. 853). He further relied on a decision of Bombay High Court in the case of Emperor v. Rayangouda Lingangouda Patil (AIR 1944 Bom. 259), .Lie decision of the 'Bombay High Court has no relevancy on the facts of the present case. This decision does not say that on the, repeal of an enactment the appointment made under it also lapse. It was only held in that case that the delegation of its powers under a particular rule by the Provincial Government cannot be deemed to cover the delegation of such powers as might thereafter be brought into existence for the first time by amend--ment of the Rule. Accordingly, when the Provincial Government delegated its powers under rule 26 to all District Magistrates in 1911 and rule 2615-B) (b) was added by subsequent amendment in 1942 the District Magistrates would have no power to pass orders under rule 26 (5-Bp (b)". This is not the situation in the present case. After delegation of powers to the Commissioner no further powers have been conferred for which a separate delegation was necessary.
16. The decision of the Full Bench of the West Pakistan High Court in the case of Muhammad Bashir v.
17. The Province of West Pakistan and another is also of not much help to the appellants. It was a case in which various provisions of the Frontier Crimes Regulation came under attack as being re-- pugant to the equality clause in Article 5 of the Constitution of Pakistan, 1356. In Malik Toti Khan v.
18. The District Magistrate, Sibi and Ziarat (PLD 1957 Quetta 1) among others it was held that sections 11 arid 12 and other provisions which enabled the authorities to refer criminal cases to a Council-of- Elders were repugnant to Article 5 and void under Article 4 of the Constitution. It was, therefore, not a case of repeal. It was held that after provisions of Frontier Crimes Regulation have become void, the Commissioner had no jurisdiction to confirm the sentences awarded by the Deputy Commis-- sioner under section 1 2 (2) of the Frontier Crimes Regulation, 1901, Sh. Muhammad Shafi, learner counsel for the appellants, has, however, referred to certain observations of Kaikaus, J. At `page 864 of the Report which do support the contention raised by him. In paragraph 10 of the judgment, Kaikaus, J. Observed as under:- "Even if we were to accept that section 6 of the Genera Clauses Act applies to a case where the statute is found to be void on account of the Constitution, the effect would not be brunt the Commissioner authority to confirm the sentence. Section 6 has no application to procedural provisions and it is a procedural provision with which we are dealing. Section 6 only saves right created and liabilities incurred oil account of a statute that has been repealed, but no person has any vested right in any procedure and procedural provisions do not create rights or liabilities referred to in this section. A substantive right or liability created by an Act acquires an existence independent of the Act which created it so that even after the Act is repealed it continues but a procedural pro--vision, even though we may call the authority or power granted by it to , a person a `right' does not create a right which may exist independently of the continuance of the provision creating it. The procedural 'right ' continues only as long as the procedural provision exists and does not survive it. While a person can claim that a substantive right which he possesses should be enforced he cannot claim that the procedure for the enforcement of his right which was in force when the proceeding commenced must be taken to its very end."
19. With great respect the reasoning of the learned Judge is against the principles laid down in section 6 of the Gereral Clauses Act. Before dealing with this aspect of the case it will be pertinent to mention here that Frontier Crimes Regulation of 1901 was repealed by West Pakistan Criminal Law (Amend--ment) Act (VII of 1963). Under section 34 of the said enactment it is provided as under :-- "(1) The Frontier Crimes Regulation, 1901, shall -stand repealed in such areas and from such date as this Act come in force in these areas.
(2) For the removal of doubts, it is hereby declared that the provisions of section 4 of the West.
20. Pakistan General Clauses Act, 1956, shall apply on the repeal of the Frontier Crimes Regulation, 1901."
21. Now section 4 of the West Pakistan General Clauses Act is in the following terms :.- Section 4. Efect of Repeal.---(1) Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of any enactment so repealed or anything 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) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and arty such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed
(2) The provisions of subsection (1) shall apply on the expiry or withdrawal of any Ordinance promulgated by the Governor under section 88 of the Government of India Act 1935, as if it had been repealed by a West Pakistan Act.
22. Section 6 of the General Clauses Act of 1897 which applies to Central Acts or Regulations is also in the same term and language. One of the effects of the repeal is that it shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, for--feiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. It is, therefore, quite clear that all the investigations or proceedings which are contemplated are to continue as if the)
23. Repealing Act or Regulation had not been passed. On this language it is quite clear that the trial of criminal cases has to be to accordance with rules of procedure in force at the com--mencement of the trial and the same procedure has to be followed. This view was expressed in the case of Srinivasachari v. The Queen (I L R, 6 Mad. 336). A Full Bench of the West Pakistan High Court in the case of Sardar Haji Muhammad Khan v. Additional Commissioner and Commissioner. F, C. A., Queta Division, Quaetta and others (PLD 1964 Lah. 401), has also taker taken view that even if the Criminal Lave (Amendment] Act of ijb3 had come into force in Quetta and Kalat Divisions, the Frontier Crimes Regulation. Being: thereupon repealed, would not affect the continuation of the pending petitions which is one of the ordinary incidents of the repeal of an enactment. In the case of Mir Sajjad Hussain v. Sahibzada Muhammad Mahboob Abbasi (PLD 1964 B J 4), a Division Bench of the West Pakistan High Court, while considering effect of repeal under section 4 of the General Clauses Act, 1956, observed as under:- "The repeal of Frontier Crimes Regulation brought into operation section 4 of the West Pakistan General Clauses Act, and subsection (2) of section 34 of the Criminal Law Amendment Act, 1963, makes it doubly clear that the provisions of sections 4 of West Pakistan General Clauses Act shall apply to the repeal. In view of clause (e) of section 4 (1), the repeal, shall not affect any legal proceedings in respect of any liability and such legal proceedings may be continued and punishment may be imposed as if the repealing Act had not been passed. There is, therefore, no manner of doubt that the effect of the repeal of frontier Crimes Regulation was intended to enable cases referred to Jirgas to be continued and concluded as if the F. C. R. Had not been repealed."
24. Having regard to the language of section 4 of the West Pakistan General Clauses Act, the statement of law made in the above--mentioned case is quite correct. It appears to me that the attention of Kaikaus, J. Was not drawn to subsection (e) of section 6 of the General Clauses Act. If his attention had been dravn he would not have made distinction in respect of procedural matters.
25. After considering the argument advanced by the learned counsel for the parties, it is quite clear that the effect of sub--clause (e) of section 4 (1) of the West Pakistan General Clauses Act is that any legal proceedings in respect of any liability shall be continued and punishment shall be imposed as if the Repealing) Act has not been passed. In these circumstances, the appellants' case which was still pending on the date when the repeal was made was to be continued and completed as if the F. C. R. Had not been repealed. The provision of section 12 (2) of the Frontier Crimes Regulation. 1901 was very much alive for the purposes of decision of the case pending against the appellants. The Commissioner of Dera Ismail Khan, there therefore, was quite competent to confirm the sentences awarded against the appellants by the Deputy Commissioner.