FAIZ MOHAMMAD KHAN, J.-This constitutional petition, filed by Syed Rahim Shah against the Government of N: W.F.P. And others, arises in the following circumstances
2. There are situated in village Jabbar forests, commonly called 'Guzara Forests', which are grown in land, called `waste-land', allegedly belonging to the proprietary body of the village. In those forests are predominately grown Diar, Biar, Ploudar and Sum trees. In the interest of forest conservancy, the management of the `Guzara Forests' has been entrusted to the Forest Depart--ment of the Government of the North-West Frontier Province under the law, called the Hazara Forest Act, 1936 (hereinafter called the Act), and the respondents 2 to 6 in this petition are employed by Government under the Act for the purposes of the management and the matters related thereto.
Under the law where the officers have been invested with necessary powers for the purposes of forest management and conservancy, some of them, having qualifications as specified in subsection (3) of section 45 of the Act, have also been invested, by virtue of said section 45, with powers to compound certain category of offences in the manner specified in the said section, by accepting, by way of compensation, from a person suspected to have committed an offence, some money, and also, after realising from him the value of the property as estimated by such officer, releasing to him the property which may have been seized from him by the Forest Authorities suspecting it to be the property with respect to- which the offence may have been committed.
3. The Forest Officers, so empowered by the Provincial Government under section 45 of the Act, are exercising such powers ever since the Act came into operation, in consequence whereof many cases of this nature may been compounded by them.
4. A few cases of illicit cutting of timber from `Guzara- Forest' allegedly belonging to the proprietary body of village Jabbar were also compounded by the Forest Officers having authority to do so under section 45 aforesaid, which gave annoyance to the said proprietary body, on whose behalf the petitioner before us submitted a written complaint, as alleged in this petition, to respondent No. 4 against the `Officially condoned illicit plunder of the trees,' as he called it, to the detriment both of the proprietary body and the Forest conservancy, but to no effect. Similar other incidents were also brought to the notice of the higher Forest Authorities with the request to stop such felling but, it is alleged in the petition, such attempts also proved ineffective. Having no other remedy available, the petitioner filed this constitutional petition, for
(i) restraining the respondents from condoning in future the acts of illicit cutting and removal and disposal of trees and timber from 'Guzara Forests' of village Jabbar in accordance with the procedure prescribed in section 45 of the Act ; and
(ii) directing the respondents to distribute amongst the proprietary body of village Jabbar the value of trees or timber realised from the persons specified in Annexure 'A' and Annexure `B' to this petition, which has wrongly been credited to Government account in Government treasury.
5. The contesting respondents do not dispute the fact that four species of trees, namely, Diar, Biar Ploudar and Sum, are predominately grown in 'Guzara Forests' of village Jabbar. They have, however, disputed the right of the petitioner, as well as the proprietary body of the village of which he is the representative, to receive the value of the trees or timber realised under section 45 of the Act from the person suspected to have committed forest offence in respect of 'Guzara Forests,' admitting such right, however, to the extent of the seigniorage-fee, as provided in Notification No. 32531/DD, dated 31-10-1950. The contesting respondents have also taken firm stand that action taken by them under section 45 of the Act has the backing of law and the petitioner or, for that matter, the proprietary body of village Jabbar has no authority to challenge or stop them from taking action warranted by law.
6. The learned counsel for the petitioner argued that there are two kinds of forests in Hazara Division, one called 'reserved forests' and the other called `Guzara Forests. He submitted that the `reserved forests' are the property of Government and the income accruing therefrom is credited to Government account as Forest Revenue, subject to the payment to the village land owners a seigniorage-fees, as mentioned in section 4 of the Act. On the other hand, he submitted, the 'Guzara Forests,' which in the Act and the rules made thereunder are termed as `waste-lands,' are the property, held jointly or severally, as the case may be, of the land-owners of the village in whose boundaries they are included and are only subject to certain rights of the land-owners and payment to Government of seigniorage-fees, as mentioned in section 12 of the Act. He further argued that the offences of illicit cutting from the 'reserved forests' are dealt with under section 9 of the Act and all forest produce illicitly obtained from such forests shall, as provided in section 10, be restored to the Government Forest Department. He argued that the offences, including offences of illicit cutting, relating to the `Guzara Forests' (waste land) are dealt with under section 26 of the Act and there is no provision in the said section, or in any other section of the Act, to the effect that the value of the forest produce illicitly obtained from 'Guzara Forests' shall also be credited to Government account as Forest Revenue. He submitted that such omission was purposeful because any thing which under law, or otherwise, belonged to land-owners or the pro--prietary body of the village could not be taken away by Government without paying to the rightful owners compensation therefor.
7. Further developing his arguments, the learned counsel for the petitioner submitted that if a sale of trees from `Guzara Forests' is sanctioned, on commercial or other basis, in accordance with working plan of the Forest Department, then the sale proceeds, less departmental charges and seigniorage--fees which are paid to Government, are distributed amongst the land-owners because under the law the ownership of 'Guzara Forests' vests in the pro--prietary body or the land-owners concerned, as the case may be. He submitted that exactly on the same basis the money recovered by the Forest Officers under section 45 of the Act, from the suspected person as value of the trees illicitly felled by him from 'Guzara Forests,' should also be paid to the village proprietary body, or the landowner concerned, as the case may be.
8. In order to correctly appreciate the arguments of the learned counsel for the petitioner, it would be useful to reproduce herein the relevant sections of law relied upon by him. The relevant provisions of sections 9, 10, 12, 26, 27 and 45 of the Act are as under : "9.-(1) Whoever-
(a) sets fire to a reserved forest or kindles any fire or leaves any fire burning in such way as to endanger such a forest, or who, in a reserved forest ;
(b) kindles, keeps or carries any fire ;
(c) grazes or drives cattle or permits cattle to trespass ;
(d) cuts, lops, taps, or burns any trees or brushwood or strips off the bark or leaves from or otherwise damages the same ;
(e) causes any damage by negligence in felling any trees or cutting or removing any forest- produce ;
(f) quarries stone, burns lime or charcoal or collects or removes any forest-produce ;
(g) cultivates any land or clears or breaks up any land for cultivation or any other purpose ;
(h) erects any building or makes any enclosure ;
(f) enters into a fenced enclosure ;
(j) in contravention of any rules which the Local Government may prescribe, shoots or fishes ;
(k) sets snares or traps, or poisons water ; shall be punishable with imprisonment for terms which may extend to six months, or with fine not exceeding five hundred rupees, or with both, and shall, in addition thereto, be liable to pay such compensation for damage done to the forest as the convicting Magistrate may direct Provided that if the offender be a woman, the Magistrate shall, except for reasons to be recorded in writing, dispense with her presence and permit her to appear by an agent, authorised by writing under the signature or thumb impression of the woman, attested by a lambardar or some other respectable person.
(2) When the person who is in charge of cattle which have been permitted to trespass to contravention of clause (c) of subsection (1) is a child under the age of sixteen years, the owner of the cattle shall be deemed to be a person who is guilty of an offence within the meaning of that clause.
(3) Nothing in this section shall be deemed to prohibit-
(a) any act done by permission in writing of the Forest Officer or under any rule made by the Local Government, or
(b) the exercise of any right recorded at settlement or created by grant or contract made by or on behalf of the Local Government.
10. The penalty provided in section 9, may, in the discretion of the adjudicating Magistrate and in the case of habitual offenders only, be accompanied by the forfeiture of all implements, or conveyances used in the commission or furtherance of the offence adjudicated, and all forest- produce illicitly obtained shall be restored to the Government Forest Department.
12.-(1) Subject to the rights and powers of the Government in respect of seigniorage and forest conservancy as defined in this Act or in rules made thereunder, and subject also to the claims of right holders not being owners of the soil, all waste-lands are the property, held jointly or severally, as the case may be, of the land-owners of the village in whose boundaries they are included and such land-owners are entitled to use free of charge for their own domestic and agricultural require--ments any trees and forest produce found in those waste-lands. But they shall have no right or power to sell any trees of brushwood growing in such lands except with the permission of the Deputy Com--missioner or other Officer authorized by the Government and under such conditions as the Deputy Commissioner may impose ; and all such sales shall be subject to payment to the Government of seigniorage--fees as provided by section 27.
(2) The claims of right-holders other than land-owners of the village shall be recognised to the extent defined and recorded at settlement, or in case of doubt or dispute, to the extent which may hereafter be defined by the Deputy Commissioner with the sanction of the Local Govern--ment, and the exercise of such rights shall be subject to the provisions of this Act and the rules made thereunder.
26. Whoever commits or abets the commission of any of the following offences, namely :- (1)------------------------------------------------------------------------------------.
(2)------------------------------------------------------------------------------------..
(3) Without permission knowingly sells or conveys for sale any tree, timber or brushwood produced on waste-land, or fells, lops, barks, bores, girdles or otherwise injures any such tree or brushwood contrary to any general or special Management orders issued under section 17 ; (4)--------------------------------------------------------------------------------------- 27.-(2) Similarly, in the case of trees which are sold from waste-lands, the Deputy Commissioner shall credit to the Government as forest--revenue the seigniorage-fees, and the balance of the price realised shall be paid to the right-holders entitled thereto ; provided that the trees referred to in this subsection are of one or other of the kinds entered in the seigniorage-list which is in force for the time being.
45.-(1) The Local Government may by notification in the official Gazette empower any Forest Officer-
(a) to accept from any person against whom a reasonable suspicion exists that he has committed any forest offence, other than an offence specified in section 41 or section 42, a sum of money by way of compensation for the offence which such person is suspected to have committed ; and
(b) When any property has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such Officer.
(2) On the payment of such sum of money, or such value as the case may be, to such officer, the suspected person, if in custody, shall be dis--charged, the property, if any, seized shall be released, and no further proceedings shall be taken against such person or property.
(3) No Forest Officer shall be empowered under this section unless he is of a rank not inferior to that of Ranger, and is in receipt of a monthly salary amounting to at least one hundred rupees, and the sum of money accepted as compensation under subsection (1), clause (a) shall in no case exceed the sum of fifty rupees."
9. The Government of the North-West Frontier Province had in the year 1950 framed rules, called the Hazara Management of Waste Lands (Guzara) Rules, 1950 (hereinafter called the Rules). Rules 7, 8, 12 and 25 thereof are relevant and may be reproduced as under "7. Utilization of dry wood and brushwood by right-holder and other persons.-In all Guzaras dry wood whether standing or fallen or brushwood may be utilised without restriction for domestic or agricultural purposes by resident right-holders within the limits of the village in which it is found any by non-resident right-holders in the limits of the village where they reside and also by persons whether residents or non-residents who are not right-holders so long as the right-holders raise no objection to their doing so and where the Con--servator does not think it necessary to interfere in the interests of forest conservancy Provided that nothing in this clause shall be deemed to allow without previous sanction of the Conservator, the cutting or removal of any trees that have been killed by illicit methods or the utilization of any brush-wood or dry wood in Guzara that has been burned without the permission of the Conservator.
8. Sale of dry wood and brushwood.-(a) The sale of dry wood and brushwood from any Guzara shall be prohibited except with the sanction of the Conservator and under such conditions as he may think fit to impose.
(b) In villages to which permission as in clause (a) has been accorded, the only persons entitled to sell wood shall be the resident right-holders and such other persons as the Conservator may specify. In the case of the latter persons, the Conservator may direct that each of them should obtain from him a licence for which a fee of not more than Rs. 5 per annum shall be charged.
12. Commercial feelings.-(a) All Guzaras shall be closed for com--mercial feelings for the next twenty years, provided that the sale of trees, silviculturally available, by the Forest Department shall be permissible at all times.
(b) The proceeds of such sales minus such departmental charges not exceeding 20 per cent of the sale proceeds as Government may fix from time to time by Notification in addition to any seigniorage fees leviable under the Act, shall be payable to the right-holders.
25. Any breach of these Rules shall be punishable with imprisonment for a term which may extend to six months, or with a fine which may extend to five hundred rupees or with both, and any wood or other produce with regard to which an offence has been committed shall be confiscated, and sold by orders of the Conservator subject to the provisions of section 517, Criminal Procedure Code. The proceeds of such sale shall be credited to Government as revenue of the Guzara Division."
10. As already mentioned, the petitioner has made two prayers in this petition. His first prayer relates to the misuse by the specially empowered Forest Officers of the authority vesting in them to compound forest offences in pursuance of the provisions contained in section 45 of the Act. The petitioner has claimed that the powers vesting in the Forest Officers under section 45 of the Act are always misused by them, with the result that the persons responsible for illicit felling of trees, who should have been prosecuted and punished for committing forest offences, are instead allowed, after paying the nominal compensation and the nominal price of the timber assessed by the Forest Officer concerned, to take away the entire timber which has been illicitly felled. The petitioner has claimed that in this manner the person responsible for illicit felling of trees makes a fortune as a result of his illegal act and is thereby prompted to repeat the offence, which process would ultimately end in the annihilation of the forest wealth. He bad, therefore, prayed in this petition that the Forest Officers be restrained from condoning in future the acts of illicit felling and removal of trees and timber from the waste-land of village Jabber. His attack, in substance, is directed against the provisions of law contained in section 45 of the Act, and the actions taken on the basis of the authority concerned thereby.
11. The relief aforesaid sought by the petitioner from the Court, in our view, cannot be granted to him for the simple reason that the wisdom of the Legislature in enacting section 45 of the Act and the action taken by the Provincial Government by virtue of the authority available to it under said section of law for empowering the Forest Officers to compound the category of offences specified therein cannot be questioned before the Court, nor would the Court embark upon the study of such question in order to be able to advise Government to retain or not to retain such provision in the Act. To make a statute is the function of the Legislature and not of the Court. To empower or not to empower any person to perform functions prescribed in the law by virtue of power vesting in the Government is the function of the Executive Government. The Court would generally hesitate, unless so compelled by the circumstances of a particular case, to assume to itself the role of advisory body in the matters of policy that may be adopted by the said two organs of the state in the performance of func--tions assigned to them. In the matter which we are confronted, however, we feel that all what is stated by the petitioner in respect of the misuse of the powers available under section 45 of the Act is not without substance. It is, however, for the Government to further analyse the matter and take such decision as may be deemed appropriate to check or arrest the evil caused by the application of section 45 of the Act. The petitioner would, therefore, be well advised to approach the Executive Government for re--consideration of the policy regarding retention, in the present form or amended form, of section 45 in the Act, and in the matter of the exercise of power vesting in the Provincial Government thereunder for empowering or not empowering such category of the Forest Officers as may be deemed appropriate. We would, thereof, refuse to grant to the petitioner the first relief claimed by him.
12. Before we discuss the second relief claimed by the petitioner in this petition, we consider it convenient to reproduce hereunder the definition of the expression `waste-land', as used in the. Act, which runs as under "(P) "waste land" includes all uncultivated land except reserved forest, graveyards, sacred places, land recorded at settlement as part of the village site and land shown as follows ; ("Khali" or "Banjar Jadid) in annual records."
13. The dispute before us relates to the money realised by the Forest Officers as a result of action taken by them under section 45 of the Act in respect of the timber illicitly felled from `Guzara Forests' of village Jabbar. The said section of law authorises a duly empowered Forest Officer to accept from a person against whom a reasonable suspicion exists that he has committed any forest offence, other than an offence specified in section 41 or section 42 of the Act, a sum of money by way of compensation for the offence which such person is suspected to have committed, and to release the property, having been seized as liable to confiscation, on payment of the value thereof estimated by such Officer. When analysed further, section 45 of the Act provides for the levy of compensation as a punishment for the suspected offence and for the recovery of the estimated price of the property from the person, who is suspected to have committed the offence, to whom the property, after such payment is ultimately released. So far as the compensation amount which is leviable by way of punishment is concerned the learned counsel for the petitioner very frankly conceded, and rightly so, that such amount shall form the revenue of the Provincial Government and the land-owners or the proprietary body of the village, as the case may be, cannot lay any claim to it. Agreeing with the learned counsel for the petitioner, we would hold that in so far as the compensation amount realise under section 45 of the Act is concerned, the land-owners or the proprietor body of the village has no concern with it and it entirely belongs to Government.
14. It is with respect to the value of the property, which has been illicitly felled and then released to the person concerned after receiving from him the estimated value, in terms of section 45 of the Act, that the petitioner has claimed that it belongs to the village proprietary body. Such value, it appears, has so far been utilised by Government as revenue of the Guzara Division in terms of rule 25 of the Rules. The petitioner claimed that such value should be distributed amongst the proprietary body of the village in accordance with their respective shares.
15. The illicit felling of trees, the value whereof is the subject-matter of dispute in this petition, admittedly related to. Diar, Biar, Ploudar and Sum trees, which are predominently grown in the waste-land of village Jabbar. If such trees are . Officially sold out of the waste-land of village Jabbar under a working plan prepared by the Forest Authorities, then all p the land-owners of village Jabbar are entitled to share rateably the price of such trees in accordance with section 3 of the `Wajib-ul-Arz of the village, subject, of course, to payment of the seigniorage-fees and the depart--mental charges to Government, as provided under the Act and the rules made thereunder. This has been held' so by the Supreme Court in a case from this village, reported as PLD 1975 SC 325. The decision made by the Supreme Court on the question as to whether the proprietary body or an individual owner is entitled to share the price of the trees is binding on the proprietary body of the' village as well as on the land-owners or the right holders of the village. The question which arises for determination in this litigation, however, is whether the price of the illicitly felled trees, realised as a result of. Action under section 45 of the Act, after deducting therefrom the departmental charges and the seigniorage fees as provided in the Act and the rules, is the property of the proprietary body of the village, to be distributed amongst them rateably, or is the property of Govern--ment, to be utilised by it in any manner it likes.
16. Section 12 of the act clearly provides that all., waste-lands are the property, held jointly or severally; as the case may be, of the land owners of the village in whose boundaries they are included and such land-owners are entitled to use, free of charge, any trees which may be found in those waste-lands. In respect of illicitly felting of trees from the `reserved forests', which are the property of Government, section 10 of the. Act clearly lays down that the forest produce illicitly obtained shall be restored to the Govern--ment Forest Department. In respect of the offences regarding trees found in the waste-lands the relevant section 26 of the Act is completely silent as to who would be entitled to receive the price of the trees illicitly obtained from the waste-lands. The other sections of the Act are also silent on this point. The legal position that obtains, therefore, is that in so far as the Act is concerned where there is no specific provision in it with respect to the vesting of the ownership of the illicit timber obtained from the `waste-lands', there is a specific provision in it regarding such timber felled from the `reserved forests', which is contained in section 10 of the Act. It is, therefore, clear that in respect of illicit timber felled from `reserved forests' a specific provision has been made in the law that it shall vast in Government. But no specific provision has been made in !He law in respect of the illicit timber felled from the `wastelands' that it shall also belong to Government. There is, therefore, a conscious omission in the law regarding such timber obtained from the `wastelands' and to it appear that it has been deliberately made, inasmuch as all trees grown in the `waste lands', according to section 12 of the Act, are the property, held jointly or severally, as the care may be, of the land-owners of the village. g The mere fact that such timber has been extracted as a result of illegal or unauthorised act done by any person or contractor would not change or affect the ownership rights of the persons in whom such property under law or otherwise vests, unless it is established that the illicit felling of trees has been with the connivance, or at the instance, of one or more landowners, in which case be or they shall, of course, be deprived of the share of the price. In his or their case such share would be forfeited to Government but the other land-owners who may not be responsible for illicit felling of trees or who may not have connived at it cannot be punished for no fault of theirs and be deprived of their dues, especially when there be no legal forfeiture of their shares.
17. The learned Assistant Advocate-General brought to our notice section 39 of the Act and argued that under the provisions therein contained any forest produce seized by any Revenue, Police, or Forest Officer, having reason to believe that it has been obtained or is being transported contrary to any provision of the Act, or any rule or order made thereunder, is liable to confiscation. He further pointed out rule 25 of the Rules and submitted that the Forest Authorities, while crediting to Government revenue the value received by them in respect of the property released to the suspected offender under section 45 of the Act, were justified in their action in terms of rule 25 of the Rules, read with section 39 of the Act. We are afraid, the provisions of the Act and the Rules relied upon by the learned Assistant Advocate-General do not advance the case of the respon-- dents any further. We have no hesitation in accepting the argument that the property seized under subsection (1) of section 39 is liable to con--fiscation under subsection (3) thereof. We are, however, of the view that the words "shall be liable to confiscation" used in subsection (3) aforesaid do not convey the meaning that without further action or order of the competent authority any property seized under subsection (1) of section 39 shall automatically stand confiscated. The word "liable" when used in any law or instrument always leaves discretion with the competent authority to pass such order as may be deemed appropriate by it, and this very fact leads to an irresistible conclusion that a specific order for the purpose has to be made by such authority. The words "shall be liable to confiscation" used in subsection (3) of section 39 would, therefore, be deemed to have been used in the law in the same sense, leaving a discretion with the com--petent authority to confiscate or not to confiscate the property seized under subsection (1) of section 39. In absence of a clear confiscation order made by the competent authority, such property would not automatically stand confiscated to Government so as to become available to be credited to the Government Revenue in terms of rule 25 of the Rules. Similarly, the stage of confiscation of the property is not arrived when action under section 45 of the Act is initiated and completed. Being an alternative procedure available in law, the suspected offender, instead of being prosecuted for the offence in Court, is proceeded against under section 45 of the Act, and the property instead of being confiscated, is released to him on payment of the value thereof, as estimated by the Officer proceeding under section 45 of the Act.
18. Rule 25 of the Rules, relied upon by the learned Assistant Advocate---General, on the language employed therein, only brings within it fold such property regarding which there is judicial determination to the effect G that it has been obtained by committing with respect to it forest offence within the meaning of the Act. As provided in this rule, such property should be confiscated by a valid order made by the Court, and only then such confiscated property can be "sold by orders of the Conservator". The proceeds of such sale only can be credited to Government as revenue of the Guzara Division, as mentioned in the said rule. While keeping all these requirements of rule 25 in mind, one can easily reach at the conclusion that rule 25 is in applicable to cases dealt with under section 45 of the Act. The language employed in section 45 of the Act clearly shows that action thereunder is initiated and completed on mere suspicion and there is no judicial determination in such a case to the effect that the property is the one regarding which forest offence has been committed. Such property is never confiscated but is released to the suspected person on payment of value thereof. While following the procedure prescribed in section 45 of the Act, the requirements of rule 25 are not satisfied. To such proceedings, therefore, the application of rule 25, as it stands, becomes out of question.
19. The learned Assistant Advocate-General also argued that the writ of mandamus does not lie because the Forest Authorities in this case have taken action in accordance with law and the rules and such action is immune from a writ of this nature. We do not agree with the learned Assistant Advocate-General in his contention. We have seen that the action taken by the Forest Authorities in crediting to Government revenue the value of the property released under section 45 of the Act is neither covered by the Act nor the rules made thereunder. Such an action is, therefore, no protected, in view of the language used in Article 9 of the Provisional Constitution Order.
20. We have held above that the share of the land-owners who are directly or indirectly responsible for the illicit felling of the trees can be forfeited to Government. In this case, however, the respondents have neither taken the stand, nor brought on record any material to show, that any one of the land-owners of village Jabbar had connived at, or was responsible for, the illicit felling of the trees from the waste-lands of village Jabbar. In such circumstances, we would hold that the value of sue property which has been released by the Forest Authorities, in the course o proceedings initiated and completed under section 45 of the Act, to Abdu Haq Shah, Mian Khan, Abdul Wahid and Mudassar Shah, named in Annexure 'B' to this petition, shall be rateably distributed amongst the land-owners of village Jabbar in the same manner in which 'Malakand' is distributed amongst them.
21. In the result, this petition should partially succeed. We . Would, therefore, direct that the value of the property mentioned in paragraph 20 of this judgment shall be distributed in the manner indicated therein. No order as to costs.