' AMIRUL MULK MENGAL, J.--- Following five petitions relate to the same incident, wherein common question of facts and law are involved, therefore, we intend to dispose of all these petitions by this common judgment; these are:--
(1) Constitutional Petition No,47 of 1990;
(2) Constitutional Petition No,50 of 1990;
(3) Constitutional Petition No,51 of 1990;
(4) Criminal Miscellaneous (Habeas Corpus) No,8 of 1990.
(5) Criminal Miscellaneous (Habeas Corpus) No,9 of 1990.
' The facts, if put succinctly, reveal that on the eventful day i,e, 21-10-1989 one Lal Muhammad along with Safar Muhammad were proceeding towards Chaman on a motor-cycle, whereas a Patrolling party of Pishin Scouts headed by one Hawaldar Sher Nyder who was accompanied by Sepoy Asmatullah Kakar, Sepoy Iqbal Khattak and Sepoy Javed Anwar were on patrol. It is alleged that after stopping Lal Muhammad and his companion to inquire from them about a piece of cloth, there was some altercation which culminated into firing by Sepoy Asmatullah Kakar as a result whereof Lal Muhammad was killed. The matter was reported to the Civil Administration by complainant Haji Ghulam Muhammad, upon which Tehsildar, Chaman rushed to the spot for necessary investigation. He took the dead body and conducted formal investigation into the matter and ultimately submitted his report to the Deputy Commissioner, Pishin through Assistant Commissioner, Chaman. After going through the material collected and statements so recorded during investigation, the Deputy Commissioner/Political Agent, Pishin took cognizance of the matter and constituted a Court of Summary Trial under the provisions of section 8, subsections (2) and (3) of Frontier Corps Ordinance, 1959 (Ordinance XXVI of 1959) (hereinafter referred to as the `Ordinance') comprising the following:--
(1) Mr. Anwar Ahmed Khan, Deputy Commissioner/Political Officer, Pishin.President
(2) Major Attaullah Jan Shinwari, Wing-Commander, Pishin.Member
(3) Mr. Jalal Khan Mondokhel, Additional Deputy Commigsioner, Pishin.Member Additional Deputy Commissioner, Pishin. Member
3. It is pertinent to point out at this stage that during the proceedings, the President of the Court Mr. Anwar Ahmad Khan was transferred and Mr. Munir Ahmed Badini took over from him charge of Deputy Commissioner, Pishin and as such presided over the Court.
4. In all, the Court examined six prosecution witnesses, recorded the statements of accused persons and found Asmatullah Sepoy of Pishin Scouts guilty of offence under section 304, P.P.C., as such unanimously convicted and sentenced said Asmatullah to undergo R.I. For 10 years on 6-3- 1990. Regarding remaining accused persons the Court recommended departmental inquiry.
5. It is further evident that Inspector-General Frontier Corps Balochistan took exception on the said judgment and sentence and forwarded a petition to the Secretary Interior Division, Islamabad for quashment of the orders of Summary trial Court whereby Scpoy Asmatullah was convicted and sentenced to 10 years' imprisonment. The learned Secretary vide his order, dated 12th of March, 1990 set aside the impugned order passed by summary trial Court dated 6th of March, 1990 under the purported exercise of powers conferred upon him by Rule 8(2) of the Frontier Corps Rules, 1961 (hereinafter referred to as the 'Rules') and directed the release of convict Asmatullah and handing over him to Frontier Corps Balochistan. It was further directed that a Court of Enquiry be constituted to inquire into the matter and to submit its final report of inquiry to the I.-G.F.C., Balochistan for appropriate action.
' This order was passed on the reference by I.-G.F.C. And no notice was issued either to the State or to any aggrieved party. However when this order was communicated, the Deputy Commissioner, Pishin filed a Constitution Petition which was admitted on 18-3-1990 as Constitutional Petition No, 47 of 1990. A Civil Miscellaneous No,240 of 1990 which was filed alongwith the said petition contained prayer for suspension of the Operation of the impugned order. The operation of impugned order was suspended subject to notice to the respondents.
6. Following this Constitution petition, one Haji Ghulam Muhammad, complainant filed Constitutional Petition No,50 of 1990 and Constitutional Petition No,51 of 1990 was filed by Abdul Jabbar son of the deceased through his real uncle and both these petitions were admitted for hearing on 26-3-1990.
7. In the meanwhile it so happened that Asmatullah convict filed an appeal against his conviction before the Secretary Interior, Government of Pakistan who was pleased to suspend the order of conviction on 21-3-1990 passed by Summary Court and subsequent thereto issued release order of the convict on 31-3-1990 despite the fact that his earlier order of setting aside the conviction of Asmatullah was suspended by this Court on 18-3-1990, and this suspension order was confirmed on 26-3-1990.
8. On 4-4-1990 Asmatullah filed a Habeas Corpus Petition No,9 of 1990 praying for his release and Inspector-General, Frontier Corps Balochistan, Quetta also filed a petition under section 491-A, Cr.P.C. For the release of Asmatullah as Habeas Corpus Petition No,8 of 1990 which was also admitted on the same day i,e, 4-4-1990.
9. After when the respondent Secretary passed orders on the appeal filed by Asmatullah, the petitioners sought permission to file amended petitions challenging the subsequent orders so passed and after grant of permission amendments were accordingly made in the Constitutional petitions.
10. Heard the counsel for the parties at great length, who advanced dexterous, lucid and illuminating arguments.
11. Various provisions of the Ordinance and the Rules made thereunder required interpretation to determine whether the Secretary Interior Division, Government of Pakistan had lawful authority and jurisdiction to hear appeal against any judgment or sentence passed by a Court of summary trial within the meaning of section 8(2) of the Ordinance; whether appeal, at all, is competent against an order passed by a Court of summary trial; whether Rules of 1961 particularly Rule 8(2) is ultra vires as it offends the provisions of Ordinance; whether Court of Summary Trial is competent to adjudicate upon, in pursuance of section 8(2) of the Ordinance, a case where accused is involved in the offence of culpable homicide not amounting to murder and many other legal and Constitutional questions of the like nature which would be referred and dealt with accordingly at the proper places of the judgment.
12. Before we proceed to dilate upon and determine the questions so raised, we think it expedient to briefly outline the main features of the Ordinance the provisions of which would require interpretation.
13. For the sake of brevity we may divide the Ordinance into following three parts:--
(i) the part comprising substantive law;
(ii) the part comprising Constitution of Courts having jurisdiction; and
(iii) procedural and remaining parts of it. We now proceed to concisely highlight each part of it.
14. The substantive part of the Ordinance consists of sections 8, section 9 and section 10. Section 8 defines offences which are more heinous in nature as for instance mutiny, conspiracy, using criminal force to superior officials shamefully abandoning garrison, etc. As well as offence of murder; whereas section 9 describes only less heinous offences, like being in a state of intoxication on parade or on duty etc. And section 10 lays down offences which in fact are with regard to terms and conditions of service and for which summary punishments have been provided for.
15. The second part regarding Constitution of the Court may be found in section 8(2), section 10(1)- (1-A), (2-A) and (3-A) as well as in section 17 of the Ordinance.
For the sake of convenience section 8 and section 17 arc he under reproduced:--
8. (1) Every member of the Frontier Corps who:-
(a) begins, excites, causes, or conspires to cause or joins in any mutiny, or being present at any mutiny does not use his utmost endeavours to suppress it, or knowing, or having reason to believe in, the existence of any mutiny or of any intention or conspiracy to mutiny, or of any conspiracy against the authority of the Government does not, without delay, give information thereof to his superior officer; or
(b) uses, or attempts to use, criminal force to, or commits an assault on, his superior officer whether on. Or off duty and whether or not knowing or having reason to believe him to be such; or
(c) shamefully abandons or delivers up by garrison, fortress, post or guard which is committed to his charge, or which it is his duty to defend; or
(d) directly or indirectly holds correspondence with, or assists, or relieves, any person in arms against the authority of the Government, or omits to disclose immediately to his superior officer any such correspondence coming to his knowledge; or
(dd) deserts the. Frontier Corps; or (c) while on active service:--
(i) disobeys the lawful command of his superior officers; or
(ii) .
(iii) being a sentry, sleeps upon his post, or quits it without being regularly relieved or without leave; or
(iv) leaves his superior officer or his post or party to go in search of plunder; or
(v) quits his guard, piquet party or patrol without being regularly relieved or without leave; or
(vi) uses criminal force to, or commits an assault on, any person bringing provisions or other necessaries to camp or quarters, or forces a safeguard, or breaks into any house or other place for plunder, or plunders, destroys or damages any property of any kind; or
(vii) intentionally causes or spreads a false alarm in action or in camp, garrison or quarters; or
(viii) displays cowardice in the execution of his duty; shall he punishable, in the case of clause (a) with death or imprisonment for a term which may extend to fourteen years, or with find which may extend to three months' pay and allowances excluding warm clothing and half mounting allowances, or with fine to that extent in addition to such sentence of transportation or imprisonment; provided that if any member of the Frontier Corps while on active service with a force beyond the limits of Pakistan commits any offence described in clause (c), clause (d) or clause (dd), he may be punished with death.
(2) If any member of the Frontier Corps is charged with committing any offence described in clause (a) of subsection (1), or an offence punishable under the proviso to that subsection, or the offence of murder, he may, notwithstanding anything contained in this Ordinance or in any other law for the time being in force, he summarily tried for such offence by the Political Officer accompanying the force, sitting with two other officers appointed by the Political Officer in consultation with the Commandant for such purpose.
(3) Every officer appointed under subsection (2) shall he either:--
(a) a person appointed under section 5, or
(b) a person holding a commission in the Pakistan Army; or
(c) a civil officer of the Provincial or Central Government holding Gazetted Class I post: ' Provided that, if circumstances permit, not less than one such officer shall be a person appointed under section 5.
(4) Notwithstanding anything contained in any other law for the time being in force, if in a trial under subsection (2) one or both of the officers sitting with the Political Officer concur with him in finding the accused person guilty of an offence, referred to in that subsection, and if the Political Officer considers the case one in which a sentence of death should be passed, he may in passing such sentence, direct that the accused person shall be forthwith shot to death, and such sentence shall be carried out in accordance with such direction."
"17.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, the Central Government may declare that any Court specified for the purpose and no other shall be deemed to be the Court of Session or the Court of a Magistrate for the disposal of cases or any class of cases arising under this Ordinance and that appeals from sentences passed under this Ordinance or from any class of such sentences shall lie to any authority specified by the Central Government and no other.
(2) Any person invested with any powers under the Code of Criminal Procedure, 1898, for the disposal of the any cases under this Ordinance within the limits of Pakistan shall, in relation to any case arising under this Ordinance beyond such limits, have the same power and he subject to the same conditions as to appeal and other matters as if such case had arisen within such limits."
Thus from the scheme of the Ordinance it transpires that there are following three types of Courts having jurisdiction in respect of offences under the Ordinance.
(1) Court of Summary trial (constituted under section 8(2) of the Ordinance).
(2) Court of Session or Court of a Magistrate as declared by the Central Government (constituted under section 17 of the Ordinance);
(3) Court/authority of I.-G.F.C., or any delegate (under section (1), (1A), (2-A) and 3-A) of the Ordinance.
16. We purposely omit to mention the appellate authority as defined in section 17 at the present, because it would be discussed at the relevant time when we attempt to determine the appellate forum under the Ordinance.
' The remaining part of the Ordinance mostly deals with the matters which are not directly at issue and the Rules which will be discussed as and when need would arise.
17. It is thus, evident that the Courts as defined under the Ordinance, are competent to try and decide offence under the Ordinance. There can be no two opinions that the part of the Ordinance consisting of substantive law is not exhaustive and it does not cover even the entire offences of ;Pakistan Penal Code. As for example, if an offence of theft or rape etc. Is committed the same obviously is not mentioned under the Ordinance, therefore, it falls outside the purview of this Ordinance, on the basis of the principle of Ubi jus ibi remedium (there is no wrong without remedy), the offence committed by any member of the Frontier Corps which is not covered under the Ordinance shall be tried and adjudicated upon by normal Courts having jurisdiction to try such cases.
18. We now embark upon to see -which offences are triable by which Court under this Ordinance.
Out of offences falling within the ambit of more heinous offences, (section 8) only those which are mentioned in subsection (2) of section .8 are triable by a Court comprising the Political Officer accompanying the Force, sitting with two other officers, appointed by the Political Officer in consultation with the Commandant for such purpose. For the sake of convenience, such Court is termed as 'Court of Summary Trial and ,it will be henceforth referred to as such.
' It may be added for clarification that cognizance of an offence under section 8(2) is taken by the Political Officer accompanying the force. (underlining is ours). Thus, we want to put it in unequivocal term that offence of murder can be tried by Court of summary trial only when the Political Officer is accompanying the force. Here the argument advanced by Mr. Ehsanul Hag, counsel for petitioner Asmatullah becomes relevant. According to his plea, the offence of murder mentioned in section 8(2) is relatable to proviso to section 8(1) of the Ordinance. The word 'or' may be read as conjunctive and not disjunctive in order to give effect to subsection (2) of section 8.
Court of summary trial can try cases as mentioned in the proviso 'committed beyond the limits of Pakistan' and obviously if murder is committed during such period then the Political Officer accompanying the force would be competent to take cognizance and summarily try an offender as well as to execute orders under subsection (4) of section 8.
' We find sufficient force in the said argument and observe that the purpose of subsection (2) was to try summarily any cases in emergency particularly when the force is beyond the frontiers of Pakistan as mentioned in the proviso to subsection (1) of section 8. Consequently offenders who commit offence of mutiny, conspiracy etc. As mentioned in clause (a) of subsection (1) or proviso to that subsection beyond the limits of Pakistan or on Gasht including murder, then it would be the Court of summary trial which shall be competent to try such cases. But in any other case these offences would be offences under the Ordinance, thus triable by a Court of Session within the meaning of section 17 of the Ordinance.
' Offences falling under section 8 excluding those mentioned in subsection (2) thereof as well as offences covered under section 9 of the Ordinance are triable by the Court of Session or a Court of Magistrate which may be constituted by the Central Government for the purpose.
' Minor offences for which summary punishments have been provided for as mentioned in section 10 of the Ordinance are triable by the I.-G.F.C. Or his delegatee, commandant etc. ' Consequently for three sets of offences as mentioned in the Ordinance hereinabove, there are three classes of Courts to try the same.
' Before we enter the arena of real contest between the parties, we think it necessary to observe that the Ordinance prescribes offences and Courts whereas the Rules lay down details thereof as also the mode of trial of these offences. But as far as investigation or inquiry is concerned into the offence mentioned in the Ordinance, Ordinance is silent, therefore, on the principles contained in section 5(1) of the Code of Criminal Procedure and in absence of any mode prescribed for investigation or inquiry in the-Ordinance, the investigation or inquiry generally may be conducted by the authorities competent to do so under normal law of the land.
' Learned Advocate-General, Balochistan Mr. Lftikhar Muhammad Chaudhry urged with considerable vehemence that appeal is a right which is expressly conferred by a statute and it cannot be presumed. If the statute is silent about a right of appeal, then such right cannot be made available to an accused person. Reliance was placed on a Full Bench judgment of an Indian jurisdiction as reported in AIR 1943 All. 26; and our attention was also drawn to another authority reported in AIR 1932 Sindh 88, wherein it was held that a right of appeal is a creature of a statutory enactment and such right must be affirmatively given and not presumed.
There is hardly any cavil to the aforesaid proposition. It is almost a settled principle of criminal law that right of appeal is always a creation of a statute. The real controversy, however, hinges on the point whether any right of appeal has been provided under the Ordinance to an accused person who has been convicted and sentenced by a Court of summary trial?
' Learned Advocate-General, Balochistan urged that right of appeal provided under section 17 and Rules made thereunder is in respect of only those sentences which have been passed by the Courts mentioned in section 17 viz. The Court of Session or a Court of Magistrate. The Court of summary trial was deliberately omitted to be mentioned in section 17, thus no appeal is competent against order or sentence passed by such Court.
' On the contrary Mr. Riaz learned Standing Counsel stated that Legislature has expressly given a right of 'appeal under section 17 against sentences passed under this Ordinance, or from any class of such sentences. On such basis it was argued that any sentence passed under this Ordinance shall be appealable to the Authority specified by the Central Government, notwithstanding which Court passed such sentences.
' This being a moot question requires thorough examination. Section 8, section 17 and section 26 of the Ordinance and the Rules made thereunder would be relevant for settlement of this issue.
' Admittedly it is section 17 of the Ordinance, where after mentioning Court of Session and Court of Magistrate it has been laid down that appeals from sentences passed under this Ordinance or from any class of such sentences, shall lie to any authority specified by the Central Government and no other. The Court of Summary Trial as envisaged in section 8(2) of the Ordinance is not mentioned in section 17. According to the learned counsel for official respondents as the legislature has used the word 'sentences passed under this Ordinance', therefore, it may be presumed that sentences also include sentences passed by Court of Summary Trial as well. This question was seriously contested. Learned Advocate-General while referring to different authorities submitted that on the principles of casus commissars this Court should not supply that which has been omitted by the Legislature. Drawing our attention to case reported in Hamiduddin v. Government of West Pakistan and another PLD (W.P.) Lah. 709 it was argued that supplies of supposed omissions from a statute are not permitted. Omissions of Legislature in regard to a statute cannot be supplied by a rule making authority. He also referred to Province of Balochistan v. Messrs Tribal Friends Company Loralai PLD 1986 Quetta 321.
If a point is not provided by a provision of a statute which perhaps otherwise is deemed necessary, the said omission cannot be supplied by a Court of law is the principle which is vastly adhered to.
In view of the authorities mentioned here in above on the question of principle of casus omissus obviously we cannot include to read the Court of Summary Trial constituted under section 8(2) of the Ordinance in section 17 along with Court of Session or a Court of Magistrate but still a fortiori this would not resolve the issue because while referring to authority competent to hear appeal, the Legislature has used words 'sentences passed under this Ordinance'. It is thus pertinent to interpret words 'under this Ordinance' to set at rest the controversial pleas taken by the parties. However, for a better interpretation we may read different relevant sections of the Ordinance together with a view to give meanings to each word and sentence of these sections so as to bring harmony amongst them instead of anomaly. We should readily declare that section 8(2) and section 17 are derogatory to each other and thus redundant. In order to interpret and construe where need arises the principle that a statute is to be read as a whole becomes relevant. To quote from Maxwell in support thereof:- "Every clause of a statute is to be construed with reference to the context and other clauses of the Act, so as, as far as possible to make a constant enactment of the whole statute. So the meanings of this section sometimes may be controlled by other sections of the same Act."
' Now adverting to the point raised by Advocate-General that Legislature intentionally omitted to mention the Court of Summary Trial in section 17 so that orders or sentences passed by it are taken out of the ambit of section 17, thereby not subjecting it to appeal. The words 'under this Ordinance' has been used in section 17 twice; firstly it has been used after mentioning the Courts for disposal of cases or any class of cases arising under this Ordinance and secondly from sentences passed under this Ordinance or from any class of such sentences the appeal would lie to the authority specified by Central Government and to no other.
' If we agree with Mr. Riaz that strict literal meanings be given to these words, then inescapable conclusion would be that it is only the Court of Session or a Court of Magistrate which is competent for the disposal of cases or any class of cases arising 'under this Ordinance'. This would exclude the Courts as mentioned in section 8(2) as well as authority as mentioned in section 10. As observed in the preceding paras, there are three classes of Courts having J jurisdiction for trial of offences under the Ordinance in their respective spheres. But it cannot be intention of Legislature that it is only Court of Session or a Court of Magistrate which is competent to try the more heinous offences, less heinous offences and even the minor offences with summary punishments and no other Court would be competent 'under this Ordinance', because these three categories of offences are mentioned in sections 8, 9 and 10. Here section 26 of the Ordinance becomes relevant and helpful.
We, therefore, reproduce section 26 as under:-- "26. The Central Government may by notification in the official Gazette, make rules:--
(a) regulating the functions and powers of persons appointed under section 5;
(b) regulating the classes and grades of, and the remuneration to be paid to, members of the Frontier Corps and their conditions of service;
(c) fixing the period of service for members of the Frontier Corps in any local areas;
(d) regulating the award of summary punishments under section 10, and providing for appeals from or the revision of, orders under that section, and for the remission of fines imposed under that section and of deductions made under section 12;
(e) regulating the several or collective liability of members of the Frontier Corps in the case of the loss or theft of weapons or ammunitions; and
(f) generally, for the purpose of carrying into effect the provisions of this Ordinance."
Thus under section 26(d) the Central Government has the powers to make rules regulating the award of summary punishments and providing for appeals from or the revision of, orders under that section, and for the remission of fines imposed under that section and of deductions made under section 12. It is pertinent to mention here that appeals against sentences passed by Courts under section 8 were not mentioned anywhere in section 26. However, as per section 26(f) the Government is empowered to make Rules for the purpose of carrying into effect the provisions of this Ordinance. So the Rule-making power is extended to entire provisions. Here Rule 8 of the Rules requires reproduction:-- "8(1)The following Courts, and no other, shall be deemed to be the Courts of Session or the Court of Magistrate for the disposal of cases arising under the Ordinance, namely:--
(a) in the case of an accused belonging to a unit of the Frontier Corps operating beyond the land frontiers of Pakistan at the time of commitment of the offence - the Court of the Political Agent or Deputy Commissioner within whose jurisdiction the headquarters of the unit are normally situated, and
(b) in any other case, the Court of the Political Agent or Deputy Commissioner within whose jurisdiction the unit of the Frontier Corps to which the accused belongs may be operating at the time of the commitment of the offence.
(2) Appeals from sentences passed under the Ordinance shall lie to the Secretary, and to no other person or Court."
It is obvious that Rule 8 is relatable to section 17 whereas Rule 6-A deals with the provisions of summary trial as mentioned in section 8(2) of the Ordinance. So also Chapter V of Rules 11 to 24 are relatable to authorities original as well as appellate as mentioned in section 10 of the Ordinance, where right of appeal has been provided. In Rule 6-A which is relatable to section 8 of the Ordinance we do not find any right of appeal or mentioning of any appellate forum except that in sub-rule (9) of Rule 6-A there is an oblique reference with regard to appeal, if the Frontier Corps is on active service or is on column or on line March, the evidence may be recorded briefly so stating the material particulars that the appellate authority may, if there be an appeal against the finding or sentence, gathered from the record the facts disclosed by the evidence. No appellate forum has been mentioned at all in Rule 6-A, however, the Court of a summary trial and its composition is mentioned.
After quoting the relevant law and Rules, we revert back to the point under discussion. Thus, a literal meaning cannot be given to the words 'under this Ordinance' because it would make section 8(2) and section 10 redundant as it excludes all other Courts to try the offences under this Ordinance except the Court of Session or a Court of Magistrate. This in our opinion cannot be the intention of the Legislature. The said words are relatable only to the 'offence' under the Ordinance and not 'forums' under the Ordinance. If, therefore, the Court of Session or a Court of Magistrate takes cognizance of any offence under section 9, it has not exclusive jurisdiction to try the same because the offences under the above section being 'offences' under the Ordinance cannot be tried by a normal Court of law. This interpretation would not only obviate anomaly which is otherwise created but would bring section 8(2), section 10 and section 17 in harmony, because then Courts mentioned in each of the said sections would be competent to try offences in their respective jurisdictions.
' Likewise these words as mentioned for the second time regarding appeals have to be looked into from the same angle. Regarding appeals the words used in section 17 are pertinent that appeals from sentences passed under this Ordinance or from any clause of such sentences shall be to any authority specified by the Central Government and to no other. Now this authority is mentioned in respect of offences triable by Court of Session or a Court of Magistrate in Rule 8(2) as the Secretary; and in Rules 11 and 12 as Secretary as well as I.-G.F.C. We may find it in column 3 of Schedule I of Rules 11 and 12. From the perusal of Schedule I, it becomes clear that it is the Secretary who is the appellate Authority in certain cases whereas in other cases it is I.-G.F.C. Who shall be appellate authority against orders passed by Commandant. Thus, it is clear that the words `under this Ordinance' regarding appeals is relatable only to offences tried by the Court of Session or a Court of Magistrate. We have arrived at this conclusion for the following reasons:-- Firstly because regarding appeals against orders passed by the Commandant, the I.-G.F.C. Has been specified by the Central Government as the appellate authority and not the Secretary and the Secretary has been appointed authority under sub-rule (2) of Rule 8 just after mentioning in sub-rule (1) the Court of Session or a Court of Magistrate. In the Rules relatable to section 8(2) of summary trial no appellate forum is mentioned. If therefore, by the words `under this Ordinance', we deduce meaning that all sentences passed under this Ordinance, then sentences passed by Commandants, for example should have been made appealable to the Secretary but it is not so.
We, therefore, cannot on the principle of cases commissar include the Courts mentioned in section 8(2) in Rule 8(1) and (2) because the Legislature has not mentioned the same therein.
' The proposition can be looked into from another angle. In subsection (4) of section 8 of the execution of the sentence of death has been mentioned pertinently and specifically. It lays down that in case both the officers sitting with the Political Officer concur with him in finding the accused person guilty of an offence referred to in that subsection and if the Political Officer considers the case one in which sentence of death should be passed he may in passing such sentence direct that the accused person shall be forthwith shot to death and such sentence shall be carried out in accordance with such directions.
' When the attention of the learned Standing Counsel was drawn to the words used in subsection
(4) and the effect of the word 'forthwith', he in reply submitted that forthwith does not mean immediately . But it means after all reasonable steps or precaution were taken. Reliance was placed on the case of Jitandra Nath Roy v. Sm. Maheswari Boss as reported in AIR 1965 Cal.
45. It was held while interpreting a clause of agreement the words 'shall forthwith' does not mean immediately but mean after all reasonable celerity. Dictionary meaning of word 'forthwith' as defined in Black's Law Dictionary is immediately; without delay, directly, hence within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch, within such time as to permit that which is to be done, to be done lawfully and according to practical and ordinarily nothing to be performed or accomplished. Mr. Riaz though not directly but asked us to believe that it means after the time of appeal is passed. There is no mention of any such appeal in the said section. It simply means that such sentences may be carried out without delay and in the ordinary course of things to be accomplished, taking only such times as permit that which is to be done. The intention of the Legislature, therefore, by omitting the words till the time of the appeal or any other word but using the word 'forthwith' clearly indicates that such sentence has to be executed without delay.
' From the above discussion we have come to the following conclusions regarding forums of appeals:--
(i) from the orders or sentences passed by a Court of Session or a Court of Magistrate for an offence under this Ordinance, appeal shall lie to the Secretary as defined under the Rule in view of section 17 read with Rule 8(2);
(ii) from the orders passed by a Commandant under section 10 of the Ordinance appeal shall lie to the I.-G.F.C. And from orders or sentences passed by I.-G.F.C. Under section 10 appeal shall lie to the Secretary as mentioned in column 3 of Schedule I;
(iii) no appeal is provided against order or sentence passed by a Court of Summary Trial, trying an offence under section 8(2) of the Ordinance.
' In a glance, it may be seen unconvincing that Legislature has provided a forum of appeal for minor offences but has not provided such a forum for most heinous offences like mutiny, conspiracy and murder committed within the meaning of proviso to section 8(1). The Legislature is competent to act according to its own wisdom and it is Legislature alone which is empowered to provide such a right or not. Mr. Tariq Mahmood, Advocate appearing for complainant Abdul Jabbar while relying on the case of Muhammad Arif v. Amina Begum as reported in PLD 1990 SC 288 submitted that there could be no scope for an appeal against an order where it is not clearly provided for under the statute.
' This discussion would bring us to the point raised by learned Advocate-General, Balochistan that Rule 8(2) of the Rules being repugnant to the parent law, i,e, the Ordinance of 1959, may be declared as ultra vires. We do not find any force in the aforesaid argument because in view of the interpretation and construction made here in above, it is evident that Rule 8, sub-rule (2) stipulates that appeals under the Ordinance from sentences passed by Court of Session or of a Court of Magistrate shall be to the Secretary. We find no repugnancy of Rule 8(2) to section 17 of the Ordinance. This argument being devoid of any force is ruled out.
' Because of the importance of the matter before us and the questions raised and seriously contested, we feel it necessary, while disposing of preliminary objections, regarding locus standi of the Deputy Commissioner, Pishin to file Constitution petition, to elaborate concisely the formation, functions and operation of the Frontier Corps under the Ordinance qua its relations in time of peace with the District Administration. The learned Standing Counsel raised objection to the maintainability of Constitutional Petition No, 47 of 1990 on the ground that Deputy Commissioner is not an aggrieved party within the meaning of Article 199 of the Constitution. We are not inclined to entertain this objection on the ground that aggrieved persons have also filed Constitution petition challenging the impugned judgments and orders on the identical grounds. Thus, such objection being formal and technical cannot be entertained.
' However, after hearing the arguments in detail we are at pains to note that because of divergent pleas taken by the Federal Government and the Provincial Government qua the functioning of the Frontier Corps and the Provincial Administration, the two very important institutions which are primarily concerned during the time of peace to maintain law and order and to help each other are no more having same cordial relations and lack cooperation in conducting joint ventures to maintain law and order, which is expected of such well-organised and important institutions.
' The Frontier Corps is being maintained by the Central Government primarily for the better protection and administration of external frontiers of Pakistan, within the limits of areas adjoining the tribal areas of West Pakistan. Provided that the Central Government may by notification in the official Gazette make any addition or omission from the list in that schedule etc. Section 7(2) provides that in time of peace every Frontier Corps and the Commandant of every unit of a Frontier Corps generally in time of peace be subject, save in respect of administration, internal economy and training, to the directions of the Political Agent or Deputy Commissioner within whose jurisdiction headquarter of the Frontier Corps is located. Similarly Rule 5(f) of the Rules lays down that the Political Agent or the Deputy Commissioner or a representative of the Political Agent or Deputy Commissioner shall accompany all special patrols (Gashts) in connection with baramptas or punitive action so as to be available to give political direction to the patrol (Gasht) Commander.
The Political Agent or the Deputy Commissioner and the staff of the Political Agent or the Deputy Commissioner shall also accompany as many normal Scout patrols (Gashts) as possible so as to acquaint themselves with the areas and the operational working of the Frontier Corps unit.
' Besides the aforesaid primary duties, additional duty of anti-smuggling has also been assigned to the Frontier Corps vide notification by Central Board of Revenue Islamabad dated 26th July, 1974 vide S.R.O. No,1017 (1)/74, which lays down that such power is entrusted to the officers of the Frontier Corps operating within twenty miles along the International Borders attached with the Province of Balochistan; as specified in the first column of the table below the functions of the officers of Customs. Hence in addition to the primary and other duties of the Frontier Corps, the officers of the Frontier Corps have been entrusted the functions of the officers of Customs under certain sections mentioned therein operating within 20 miles alongwith International Borders adjoining the Province of Balochistan. Similarly the learned Standing Counsel has annexed a copy of the policy on employment of C.A.F. (Civil Armed Forces) Troops which in time of peace, describes the mission as under:--
(a) In peace.
(1) To man the Pakistan borders/coast and maintain law and order in the tribal territory/special areas.
(2) Aid to Civil Power.
(3) Anti-smuggling, anti-pawinda, anti-dacoity, anti-raid and anti-infiltration duties.
(4)
' We have ushered in the area of the above discussion with no intention to transgress into the realm of other functionaries but only with a view to determine the point raised by the Standing Counsel, that while performing functions under the Customs Act, the Frontier Corps are not subject to the operation of the Ordinance of 1959 or the Rules made thereunder. While referring to saving clause of the Customs Act, the learned counsel invited our attention to section 164(2) (a)(b) of the Customs Act and submitted that it provides protection to the Frontier Corps even if a murder is committed in pursuance of lawful order.
However, the counsel for the parties lost sight of the fact that a similar provision is provided under the Ordinance in section 16, which lays down that any member of the Frontier Corps for any act done by him in pursuance of a warrant or order of a competent authority, it shall be lawful for him to plead that such act was done by him under the authority of such warrant or order and if he proves the same he shall thereupon be discharged from liability in respect of the act so done by him, notwithstanding any defect in the jurisdiction of the authority, which issued the warrant or orders.
' No exception can be taken to these propositions but this would be a plea to be taken by such officers and to be proved before Court of competent jurisdiction in order to be discharged from liability.
' It may be made clear that the Frontier Corps Officers or employees are always governed by the provisions of the Ordinance of 1959 and the Rules made thereunder, even if they are performing duties under any other Act like anti-smuggling activities because such duties are also assigned under the Ordinance or bye-laws. The primary functions of the Frontier Corps is to protect the border of U the country or to help in maintaining law and order situation etc. Anti-smuggling duty is only an ancillary duty hence status of employee is not changed where he simultaneously performs an ancillary duty along with main duty. For performance of main duties it is the Frontier Corps Ordinance and Rules which govern such employees, therefore, the same are also applicable to them if they perform any other duty.
From the above discussion we have come to the conclusion that the Secretary as defined in the Rules is the authority specified by the Central Government to hear appeals from orders or sentences passed by the Court of Session or a Court of Magistrate within the meaning of Rule 8(2) read with section 17. So also the Secretary is the authority specified by the Central Government to hear appeals against the orders of the I.-G.F.C. Alone within the meaning of section 10 of the Ordinance read with Rule 12 of the Rules. But he is not an authority to hear appeals from orders passed by Court of summary trial within the purview of section 8(2) because the statute does not provide a right of appeal from any order passed by a Court of summary trial.
' Accused Asmatullah was admitted, tried and convicted by a Court of Summary Trial within the meaning of section 8(2) as is evident from Annexure `A' in Constitution Petition No,47 of 1990. It appears that in fact the I.-G.F.C. While forwarding petition for quashment before the Secretary, took the plea that factually it was a Court of inquiry and not a summary trial Court, therefore, it was not competent to pass any conviction and sentence. Mr. Riaz also took a similar plea before us. But no Constitution petition has been filed before us either by the I.-G.F.C. Or by convict Asmatullah to challenge the Constitution of the Court of Summary Trial. Learned Advocate-General, Balochistan, therefore, realising this, strenuously urged that no prayer has been made by any of the petitioners in any of the petitions in this regard, therefore, this Court while sitting in writ jurisdiction cannot issue a writ suo motu and confine itself to the prayer made in the writ petition. Reliance was placed on the case of Akhtar Abbas and others v. Nayyar Hussain as reported in 1982 SCMR 549 and the Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service and others as reported in PLD 1958 SC (Pak.) 437.
' Before determining this issue we would like to add that Habeas Corpus Petition No,8 of 1990 was filed by I.-G.F.C. And Habeas Corpus Petition No,9 of 1990 was filed by convict Asmatullah but none has prayed for a declaration that the Court of Summary Trial convicting the accused was not properly constituted or had no jurisdiction. The prayer clause of Petition Nos.8 of 1990 and 9 of 1990 are respectively reproduced:-- "It is accordingly respectfully prayed that the detenu Asmatullah may kindly be ordered to be produced before this Honourable Court and issued writ of habeas corpus and directions be made for the release of the dctcnu in the interest of justice."
"It is accordingly respectfully prayed that keeping in view the above facts and legal position the petitioner may kindly be ordered to be released and set at liberty in the interest of justice."
Thus, we find sufficient force in the contention raised by learned Advocate-General, Balochistan that no writ can be issued in certiorari, suo motu by the Court in absence of any prayer by any aggrieved person. We are fortified in our view by the aforesaid two judgments of the Honourable Supreme Court.
Since we have already held in the preceding paras that the Legislature has not conferred a right of appeal to a convict by Court of summary trial within the meaning of section 8(2) of the Ordinance, therefore, the Secretary, Government of Pakistan, Ministry of Interior Islamabad has no powers and authority to hear appeals against such a sentence. Consequently we declare that the orders of 12th March. 1990, 21-3-1990 and 31-3-1990 all have been passed without lawful authority and thus are of no legal effect. Since the accused Asmatullah has been convicted and sentenced by a Court prima facie under section 8(2) of the Ordinance, therefore, the Habeas Corpus Petition No,8 of 1990 as well as Habeas Corpus Petition No,9 of 1990 are not maintainable and are dismissed as such.
' Before parting with the judgment we would like to put a note of appreciation for the assistance given to us by learned Advocate-General, Balochistan, leaarned Standing Counsel as well as Messrs Ehsanul Haq, Raja M. Afsar and Tariq Mehmood, Advocates.
' Petitions are disposed of in the aforesaid terms with no order as to costs.
Wali Muhammad v. Sharif (Malik Abdul Majid, Member (Revenue)