ZAKAULLAH LODHI, J.-This application filed under Article 203-B of the Constitution of Islamic Republic of Pakistan, 1973 assails the validity of Frontier Crimes Regulation, 1901 (hereinafter referred to as the "F. C. R.") on the ground that it was repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (peace be upon him).
2. Before dealing with the grounds upon which F. C. R. Has been challenged it would be of advantage to briefly refer to main historical features which were responsible for the promulgation of this highly controversial Law; meant exclusively to govern some districts of Baluchistan and North-West Frontier Province; described by it as "Frontier Districts". It is thus evident that enforcement in said Districts alone offended against the uniformity of laws which was maintained almost all over the sub-continent during the British period. Such Discriminatory treatment was meted out by the British to said Districts of Baluchistan and N: W. F. P. Mainly for the reason that a cheap and affective administrative system could be introduced here without much difficulty, as at the time of their advent this region was in the strong grip of Tribal System and in almost all spheres of life Tribal heads plated a dominant role. It was thus only a matter of winning over such Tribal heads to their side. Alike other spheres of life, in the field of administration of justice also, with which we are presently concerned "Jirga System" was in vogue whereunder the Tribal heads such as Nawabs, Sardars and Maliks, etc. Decided disputes of all kinds either in accordance with the Customs and Usages ('Riwaj'), to which the parties owed allegiance or according to "SHARIATE ISLAM" if the parties opted for it; and such option was often exercised as in the entire region people have always been staunch Muslims. Admittedly when the British set their Foot in this region, it did not offer to them much of economic laws; yet in the interest a fortification of their defences on the North and North-Western Frontiers, there was no choice for them but to establish their sovereignty over this region. So they did. But the administration had to be cheap, for this region was too vest and the systems in vogue elsewhere would have been too expensive; and naturally for their limited interests, they did not like to go that far; hence they exploited the existing tribal system to help in the fulfilment of such designs. Here it may be mentioned that even after having established their foot hold here they were faced with the problem of completely sub-doing the freedom-loving "Baluch" and "Pathan" of these areas which required a constant warfare. That too did not suit their interest. It was thus to favourably meet all these problems that they cleverly hit upon a plan of introducing a cheap and effective system whereby by spending nominally they could control the entire region and that was done by the introduction of F. C. R. In entire British Baluchistan and some parts of N.-W. F. P. By means of this law they could have effective control over this region by using the Tribal heads as the protectors of their interest for which they were paid fixed allowances besides other privileges. Thus knowingly or unknowingly they (Tribal heads) safeguarded the interests of their benefactors and also kept themselves happy with the frivolous notion that they were allowed to enjoy over-lordship upon their tribes. The lever to use them as considered proper was in the hands of the Deputy Commissioners who were entrusted with vast and unfettered powers not only in the matter of controlling law and order problems, but also in the matter of decision of such cases which they liked to draw for the discriminatory procedure of the F. C. R., as we shall presently see; hence F. C. R. Is more a law of "convenience" or "expediency" than a law to ensure just and fair decisions of cases in the tribal regions. Now it hardly needs a mention that selection of cases for trial under F. C. R. Was primarily for political and administrative conveniences, otherwise, there was no point in referring only selected cases for trial under F. C. R. (under this system securing of favourable recommendations from the "Council--of--Elders" was normally no problem) leaving the rest to be tried under normal laws of the land. Precisely F. C. R. Is an arbitrary law giving uncontrolled powers to the f Deputy Commissioners and it is the realisation of this fact, besides people's reaction due to their sufferance under this law for generations together that since before the emergence of Pakistan on the World scene there has been ever-increasing agitation against this law by all and sundry. Besides the injustice that results under this law, it has also been greatly impending social and economic advancement of the people which is yet another ground why it is hated and opposed as legacy of British rule. However, we are not concerned with this aspect of it, and shall therefore confine our discussion to the legal plane alone. Before proceeding further, it will only be proper to mention here that several Law Commissions, set up both on Federation and Provincial level, have also examined this law and unanimously recommended its repeal for reasons given above. There are also several C decisions by various High Courts including one of West Pakistan High Courts in 1965 which have which have declared it to be ultra vires of Constitution being a discriminatory law, and thus a bad law. In the last mentioned judgment their Lordships have gone to the extent of saying that it was "no law at all". We would be dealing with these reports and decisions at suitable length towards the end of the judgment. Presently, the position is that with the enforcement of Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 in the entire tribal belt of the Province, all civil cases are now triable in accordance with "Shariat-e-Islam", whereas, in the left over criminal field also it has recently given way to the laws pertaining to Hadood; as such, its scope stands greatly shrunk. This is as far as the precise background of this law was concerned. We shall now proceed to examine its repugnancy, if any, with the Injunctions of Islam in the light of the contention raised before us on behalf of the applicant which are as under :- "(A) That it was discriminatory law on the grounds; firstly that it applied to some parts of Baluchistan alone and was unknown to the rest of the country; secondly, that it applied only to Baluch and Pathans living in such areas of Baluchistan to which it applied, whereas the remaining population of such areas as well remained unaffected by it; thirdly, that from amongst the cases pertaining to said tribes of those areas also only those cases which the Deputy Commissioner concerned picked up for trial under this law in exercise of powers vesting in him by virtue of sections 8 and 11 (upon which the entire superstructure of F. C. R. Stands) were to be tried under it, while the remaining cases were tried under the normal law of the land; and fourthly, that the Government servants whether they were Baluch or Pathans could be saved from its operation; hence on the ground of such multiple discrimination to which it gives rise, it was violative of the injunctions of Islam.
(B) That it perpetuated yet another kind of discrimination, in it, that it is instrumental in enforcing such Customs and Usages which differ from tribe to tribe and place to place, which situation offends against the injunctions of Islam as it undeniably stands for uniformity of laws.
(C) That this system rests upon duality of proceedings as in all the cases the evidence was recorded by the "Council-of-Elders" whereas their decision law in the bands of the Deputy Commissioners and as they never had the opportunity to test the veracity of the statements of the witnesses, chances of miscarriage of justice could not be ruled out. Such a situation was opposed to Islamic Injunctions under which from the state of the institution of the case up til its decision the same Court conducted the proceedings.
(D) That there being no rules worth the name on the point of evidence, the "Council-of-Elders" was at liberty to proceed according to its own whims and caprice in the matter of recording the evidence and its appraisal, as well as with regard to admissibility or otherwise and the number, quality and nature of witnesses. So much so that there was also no check upon the use of personal knowledge and hearsay evidence. Such a situation was obhored by Islam as it lays great emphasis on the quality and number etc., of the witnesses as well as the manner in which such evidence is to be recorded. Further, it condemns the use of hearsay evidence. Hence on this score as well F. C. R.
Was in direct conflict with Islamic Injunctions.
(E) That the provisions of F. C. R. With regard to levy of "Collective Fines" which are recoverable from the whole or a section of a tribe, a family or a part thereof, or from the whole or a part of the inhabitants of a village, as deemed fit by the concerned Deputy Commissioner, the Security proceedings taken in the same fashion; the orders of externment of a person from a particular area (which could also include his permanent abode); and the provisions as to levy of additional punishment of whipping in certain cases than the punishment prescribed by P. P. C. Was also grossly against the Injunctions of Islam; thus rendering F. C. R. Liable to be struck down.
(F) That F. C. R. Was repugnant also to the Fundamental Rights, guaranteed by the present Constitution, as well as recognized by Islam."
3. Besides Mr. Munawar Ahmed Mirza, Advocate who appeared for the applicant, from amongst the learned jurist-consults on the panel maintained by the Court, Messrs Muhammad Moquim Ansari, Muhammad Nawaz Ahmed, I. H. B. Hanafi, Advocates addressed the Court and supported the application, while Messrs Azizullah Memon and Amir-ul-Mulk Mengal, Advocates adopted their arguments. Mr. Basharatullah learned Advocate-General, also addressed to Court but apposed the application on the point of jurisdiction of this Court.
4. As the first two grounds deal with the alleged discrimination, they can be conveniently disposed of together. Messrs Muhammad Moquim Ansari and Muhammad Nawaz Ahmad, learned Jurist- consults submitted that Islam as a complete and perfect Code of life brought about a revolutionary change in the life of the people who came within its folds and main characteristic of such revolution was elimination of all kinds of discriminations in every walk of life, which were recognized genuine in pre-Islamic society.
Such principles can well be discerned from the Holy Qur'an, which is undoubtedly the basic source of Islamic philosophy and the Sunnah of the Holy Prophet (peace be upon him). Alike other spheres of life, in the' field of the administration of justice also "equality of Laws" was the cornerstone of Islamic teachings and anything offending it shall have to be declared un-Islamic without least hesitation. The crux of their submission was that Islam invalidates discriminations on the basis of caste, creed colour, social status, place of birth, any other considerations of the like nature, as its basic principle is "ADAL" which is to occupy the field, in all spheres of life. In particular, "Justice" as far as it concerns the decision of cases, both of civil and criminal nature, has to be administered on the basis of "equality" with all religiousness. It can well be seen from this discretion : " (5/8) (do Justice. It is near to piety). But very concept of "Justice" fails in the face of discriminatory laws, and F. C. R. Is one such law, as it is responsible for discriminations on various scores such as (a) now it applies to Baluchistan alone while the rest of Pakistan is saved from it; (b) that within the, Province also it applies to some parts only and the rest of the Province is governed by other laws, which do not preach of discriminations; (c) that again within the Province also it applies only to Baluchis and Pathans living in the areas which are under its governance; and (d) that from amongst the cases of the tribes to whom it applied, only those cases were referable to the `Council of Elders" constituted under it by virtue of section 8 and 11 which were picked up for discriminatory treatment by the concerned Deputy Commissioner, in his own unguided and unlettered discretion; and it needs no repetition as to what can generally by the nature of such considerations. Furthermore as Customs differ from tribe to tribe and place' to place, therefore, another kind of discrimination was, also in vogue by mischief of the F. C. R. As it is responsible for the enforcement of the same, with the result that in respect of the same object and in the same situations people were dealt with different standards both in the matter of decision of their civil cases and punishment for offences committed by them. Such discrimination, learned counsel argued, was altogether unconceivable by Islam.
Examining these submissions, in their true perspective it can be clearly seen that they have great force and do not fall short of correct exposition of this law by any legal acument; for, by virtue of its nomenclature preamble, and section 1 itself, it was crystal clear that it was a law meant only for the Frontier Districts of the sub-continent which have been enumerated in subsection (3) of section 1 and the span of its operation could be extended to other such districts where Baluchis and Pathans lived . . . . . Thus neither by its own force it was capable of extension to any other region of the Sub- continent, nor was it done during the past about three quarter of a Century, which proves it beyond any shadow of doubt that only said regions and the particular tribes living therein were classified by the then rulers for subjection to this harsh and uncivilised law. It is thus not a law which had universal application at any stage of time; and now it applied only to Baluchistan to the extent of its Tribal areas where it was initially extended vide British Baluchistan Law Regulation, 1913; as for quite some time back it had been lifted from N: W. F. P. Accordingly it is a law which discriminates the people of this region from their counterpart living not only elsewhere in Pakistan but in other parts of Baluchista also. Then from amongst the Baluchis and Pathans living in the tribal areas also it is applicable to such individual cases which a Deputy Commissioner selects for decision under its procedure and the Deputy Commissioner by virtue of sections 8 and I1 which deal with the reference of civil and criminal cases respectively has unfettered discretion in this matter. So much so that a decision with regard to reference of a case to "Council-of-Elders" is also not appealable or subject to revision Here it would only be appropriate to quote from Khan Abdul Akbar Khan v. The Deputy Commissioner of Peshawar (PLD 1957 Posh. 100) in which case, among others, said powers of a Deputy Commissioner with reference to section 8, F. C. R. Have been discussed :- "Section 8 has several interesting features. It empowers the Deputy Commissioner to refer a civil dispute to a Council but in the first place there should be no civil suit pending in respect thereof.
Secondly, the dispute should be such as is likely to cause a Nood-feud, murder, mischief or breach of the peace. Thirdly, if any of the parties belong to a "frontier tribe", the dispute need not lead to any of those results, and it would be enough if there is just a dispute. Fourthly, the Deputy Commissioner has a discretion regulated by his own satisfaction to refer it to a Council or not to refer it. Fifthly, he may refer it only "if he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the consequences anticipated." In other words, if he thinks that the dispute will not end "the consequences anticipated" he should not refer the case to a Council. I think that the consequences anticipated are a blood-feud, murder, etc. But if that be so, then since these consequences are not relevant to a dispute where any one of the parties belongs to a frontier tribe, it is not clear what considerations will weigh with the Deputy Commissioner when dealing with such a dispute."
It was further observed :- "Next, Mr. Mahmud Ali contended that since the choice of selecting suitable cases for reference lies with the Deputy Commissioner, the Regulation makes it possible for him to discriminate. If his discretion had been subject to judicial review, one might say for him that his "satisfaction' will be a reasonable satisfaction, but in the matter of reference his conduct is not open even to revision, for, the Commis--sioner comes into the picture only after there has been a decision, and he cannot interfere on the ground that this was not a fit case for reference.
Whatever may be said about the repugnancy of this procedure to the equality before law provision of the constitution, there can be no doubt that the trial itself can by no means be called a fair and impartial trial."
Similar is the position in case of section 11, F. C. R. Which deals with the reference of criminal cases as here as well a Deputy Commissioner is equipped with same powers as he enjoys under section
8. In fact entire superstructure of F. C. R. Is built upon these two provisions which are substantive in nature. Accordingly not only the law but this unfettered discretion allowed, by it also being responsible for discrimination is by itself sufficient to render it, a bad law; but before proceeding further we shall quote another brief passage from the judgment, which can well be described "factual assessm ent" of Deputy Commissioner's powers under F. C. R. :- "Next, we reach section 8, which makes the law a perfect ass, and the Deputy Commissioner can ride it to any goal within the five broad clauses of subsection (3)."
Evidently not only the law under reference is highly discriminatory but said provisions (sections 8 and 11) have made the situation still worse; for every one having a dispute is left to the mercy of the Deputy Commis--sioner. It is however, besides the point that others who do not have a F dispute for settlement can also be ruthlessly treated by a Deputy Commissioner if be so liked under the provisions dealing with securities for keeping peace, and externment from an area, etc. So, in such a situation fairplay and justice, stricto senso, as is available outside the four walls of F. C. R. Is no where to be seen once a case, or person is subjected to its application. This question also came up for consideration in Malik Muhammad Usman v. The State and others (PLD 1965 Lah. 229) and it was unanimously held by the Full Bench that section 8, F. C. R. When read with its sections 9 to 10 and 36 and Article 6 of the late Constitution of 1962, was discriminatory and same was the case with section 11 which stands on identical footings, and as observed earlier, with this declaration entire superstructure of F. C. R. Was bound to crumble down; yet it could stay in the field for the Fundamental Rights, some of which were violated by it, remained suspended all these years. Last of all we shall deal with yet another manner of discrimination pointed out by the learned counsel that Customs and Usages ('Riwaj') being different from tribe to tribe and place to place, no uniformity of decisions could be achieved in respect of the same objects and in same situations as F. C. R. Was bound to enforce the. Customs locally recognized. Still further the Government Servants could lo also be saved from its operation, irrespective of the fact whether they were Baluchis or Pathans and also hailed from the areas to which F. C. R. Applied. All these kinds of discriminations are abhored by Islam which stands for equality of laws as-hereinbefore mentioned.
5. Now adverting to Islamic Injunctions the basic principle with regard to justice is to be found in the direction namely "Justice stricto senso" which in turn, is not possible without "Just" laws, and one of the qualification of "Just" law is its universality, or oneness for all, without any kind of discrimination; for discriminations, on any account, much less for administrative or political conveniences, offend against the principle of "Justice". Accordingly all discriminatory laws are against the injunctions of Islam. Keeping in view the preconditions "Just Laws" and "oneness of Laws" we shall proceed to derive further benefit from the Commandments of God Almighty and the Sunnah of the Holy Prophet (peace be upon him). Adverting to Qur'an first, for it is basic source of our jurisprudence and laws, and equips us with fundamental principles on the point, the direction contained in (La takhsiroo-ul-Meezan) " Need not re repeated. Next years that we shall refer is 5/44: (Translation :- Those who do not impart justice in accordance with the book sent by God enjoy Qur'an) are (actually) the people (who are) termed an Non-believers. Another verse on this Point is 7/159 (Translation :-- They guide the people towards 'Right' and impart justice according to "Haq"). These being the basic principles of administration of justice, there is no scope for any discrimination; whatever be the justification that is pressed into service for existence; much less an allowance for the use of discretion in the hands of an authority to multiply the discrimination created by the discriminatory law by using his own whims. In this connection let us also peruse from Sura Inam (6/153) (Translation :- Whenever you act, then act according to law and justice; no matter the person with whom you were dealing was your own relative). Hence it is quite clear that justice is to be imparted with all religiousness at one's command without any discrimination of whatever kind that might be. Before we part with this discussion it will be of great advantage to refer to the last address ("KHUTBA") of the Holy Prophet (peace be upon him) who declared in explicit terms that "henceforth no discrimination was allowed to be practised for the reason of race, caste, creed, colour, place of birth, etc. And that and "Arabi" shall have no preference over an "Ajami" (Non-Arab) or vice versa; meaning thereby that all those who had embraced Islam were equal in all respects.
This "KHUTBA" should not only be termed as "MAGNA CARTA OF HUMANITY" but also the virtual interpretation of the 'basic philosophy of Holy Qur'an; and the contemporary world cannot produce a social framework of this high order. On this point a large number of citations beginning from the era of the Holy Prophet (peace be upon him) up to the end of "KHILAFAT-E--RASHIDA", can be given, but in the light of what has been said above, the philosophy of Islam hardly needs any more materials for its elaboration.
Mr. Basharatullab, learned Advocate-General, however submitted that elsewhere in Pakistan also discriminatory laws could be seen particularly on the subject of levy of taxes in this respect suffice it to say that such laws bear no relevance to the basic procedural and substantive laws; as the principles of levy of taxes are bound to fall short of uniformity as financial conditions and financial needs are not the same in every Province. This argument is thus without any substance.
In the light of the above discussion, it is apparent that some of the Baluch and Pathans to whom F.
C. R. Applies have been classified as a separate and distinct class of people from amongst the Pakistanis and subjected to this highly arbitrary legal system. Thus F. C. R. Being patently opposed to the injunctions of Islam is a bad law and consequently liable to be struck down.
6. Next contention raised before us pertained to the evidence recorded by the "Council-of-Elders" in a case, decision whereof lay in the hands of the concerned Deputy Commissioner. It has already been pointed out that both civil and criminal cases were referred to the "Council-of-Elders" under sections 8 and 11 of F. C. R. By the concerned Deputy Commissioner in his own discretion. After such reference entire evidence was recorded by the "Council-of-Elders", which made recommendations deemed fit by it, the Deputy Commissioner. It then lays within his domain to accept of reject the verdict of the "Council-of-Elders" and for this he was no bound to follow any rule or principle and could pass any order in the case whether it was justifiable by the evidence or not and that too without assigning any reason therefore. It is a different matter, however, that the Council in its turn was also not bound by any principle or procedure worth the name for its guidance in the matter of formulation of its recommenda--tions. Be that as it may. The duality of proceedings of this nature was opposed to the procedure envisaged by Islam, for, there was no concept of ten different forums proceeding with the same case. Under Islamic laws every case was to be tried and decided by the same Court; so that the Court could see for itself whether or not the evidence adduced by the parties inspired confidence, if so, to what extent. Again for testing the veracity of the statements of the witnesses examined by him, the Presiding Officer was bound to follow glaring and undisputed principles of Islamic Law, such as cross-examination of a witness, Court questions watching of witness's demeanour and application of any other proper method to test witness's creditability. Such a test of judging reliability of witnesses would not be possible if evidence was not recorded by the same Court. Therefore, under F. C. R. When a Deputy Commissioner passes the final verdict, is case without having recorded the evidence himself he invariably fails in delivering a just decision. There is also no rule of corroboration of the statements of the witnesses upon which Islam lay such stress. Similarly number of witnesses has no relevance to Jirga trial. It needs no mention that there being no law or guiding principles in respect of the evidence recorded by the "Council-of-Elders", the provisions of Oaths Act, as well as that of Cross-Examination, re- examination and of Court questions etc. Are not necessary to be followed in order to test the veracity of the witnesses. Even otherwise the Jirga members being mostly illiterate no knowledge of any law laying down general principles for the trial of cases can be expected from them. They are rather trained in an atmosphere where their despotic tendencies are so well nourished, that even if there was any law available for their guidance they would probably refuse to follow it as they lived in "open air" and considered it against all cannons of chivalry. Islam lays great emphasis on corroboration of witness' testimony, without which it was unacceptable; hence, generally the require--ment is that there should be two truthful witnesses to prove a particular transaction. In Verse 5/106 clear direction can be found on the subject though it says that in case of a will two witnesses shall be necessary, and in case of an indecent act attributed to women four witnesses would be required. Verse (4/15) also lays emphasis on the production of two truthful witnesses in order to avoid possibility of miscarriage of justice. Similarly it is the duty of the Court to make genuine efforts to test the truthfulness of a witness, as already observed; and in case there was any doubt about the authenticity of a witness's statement other witnesses from the side of such party against whose interest a statement had been made; could be called, as enshrined in the Holy Book (Verse 107/108). There being no standards to follow with regard to the acceptance or rejection, sufficiency or insufficiency and quality etc., of the witnesses in a Jirga trial it was the whim of the members of the "Council-of-Elders" which served as a guiding principle. Moreover use of personal knowledge of the members of the Council and admissibility of hearsay evidence was common in "Jirga" trials. Holy Qur'an has expressly barred use of L hearsay evidence. In Verse 17/36 Translation :- Remember ; Do not follow a thing in respect of which you have not made investigations by use of your means of hearing and seeing; then take decisions in the light of such knowledge, so that you arrive at correct decisions; kand) even if one link was missing then your investigation would be rendered defective; See, what a great responsibility is cast upon you . . . . .). This Verse equally relevant to those who appear as a witness. In the light of above it is apparent that the manner in which trial is held under F. C. R. And in particular so much of it which relates to the collection of evidence and its use is patently against the tenets of the Islam.
7. The learned counsel next urged that the provisions with regard to collective fines, security for keeping peace, orders of externment from a place including once permanent abode, and additional punishment were also contrary to the injunction of Islam.
Under section 22, F. C. R. Collective Fines could be levied upon a community or a section thereof, upon a family, a tribe, or upon the residents of a particular village by a Deputy Commissioner in case he was convince of the Commission of an offence, abetment thereof, or assistance etc., in connection therewith, and even in cases where in his opinion there was likelihood of commission of an offence. In this context Islam lays down a clear principle that one who is responsible for a crime would alone bear its burden. For guidance Verse 6/165 (Translation One who shall do (commit an act) shall be responsible for it (and) no other person would carry the burden of any person), may be seen. Now there is hardly any necessity to hold that section 22 of F. C. R. Was opposed to above referred Commandments of God Almighty, for, things are so clear.
Sections 40 and 41 of F. C. R. Deal with Security and surveillance and enable a Deputy Commissioner to bind down an individual for keeping peace merely on the basis of an apprehension of the commission of an offence by a person (or group of persons, as under this provision there is no bar to bind down an entire tribe or a facting thereof, etc.) in order to ensure peace and trinquillity within the territorial limits of his jurisdiction.
This provision of law again offends against the principles of Islam herein--before mentioned, whereby only a person responsible for an act could be proceeded against and not others, however closely they might be linked with the offender. Again simply on the basis of apprehension no action prejudicing the interest of any person could be taken. It is so because Islam envisaged punishments for offences and for apprehended commission of offences or on the basis of accusations and putting a person in a disadvantageous position is nothing but a kind of punishment, howsoever, low or high it may be regarded. The Holy Qur'an directs that when an accusation was levelled against a person better remain inactive or silent and take appropriate steps only' after investigation (Verses 24/12 and 24/16). These directions came at a stage when a chaste lady was accused of having easy virtue and action was contemplated against her. Such situation was noticed with gross concern and this Verse was revealed by God Almighty for guidance of all Muslims.
Similarly under section 36 of F. C. R. a Deputy Commissioner was empowered to direct a person who was considered a dangerous fanatic etc., by him to remain outside the limits of his jurisdiction or outside a particular area which as said above, could include his permanent abode as well. Now apart from the fact that any person could be regarded dangerous fanatic etc., as it all depended upon the discretion of the Deputy Commissioner who was not supposed to follow any principle in this respect, it is further interesting to note that in case of orders passed under sections 40 and 41, F.
C. R. At least a recommendation of the "Council-of----Elders" was necessary, but for orders of externment even such a formality was not required to be observed. This again is a position which is reconceivable under Islamic Injunctions, for, they provide that no body was to be placed in jeopardy or disadvantage unless he had committed a definite crime and was convicted in connection therewith after trial in accordance with law. However, Mr. Hanafi submitted that in a Islamic State its head could make suitable laws for meeting such situations where law and order problems were required to be tackled, and such laws could also include security proceedings. The argument is not without force; but the position remains that such provisions have not been introduced in the F. C. R. With a genuine intention of keeping of peace in the interest of the people of this "Ilaqa", but they are primarily meant to safeguard the interest of their makers, and that is why they have been designing it in such a manner that the Deputy Commissioners could conveniently use them as an instrument to treat the people in a manner they liked, or at least keep the word of arbitrary laws hanging upon their heads. As such, it would be entirely a different matter when an Islamic State frames laws for safeguarding the interest of its citizens which laws may include the laws responsible for the maintenance of peace; but again such laws when made, shall have to be tested on the touchstone of the basic principles of Islam.
As far as the question of additional punishment, than the one provided by P. P. C., is concerned, section 6 of F. C. R. May be perused which makes a special provision of whipping in case of a person who had been convicted of any of the offences under sections 304, 307, 324, 325, 326, 376, 377, 382, 392 to 399, 427, 428, 429, 435, 436 and 448 to 460. Such punishment is to be in addition to the normal sentence. Here Qur'ani Verses 42/40, 17/33, 4/93, 2/194, 10/27, 16/126, 22/60.And 40/40 may be referred to which, inter alia, give directions that punishment awarded to an offender must be proportionate to the gravity of offence; hence by awarding an additional punishment not only that such proportion is disturbed but a discrimination is also set in, as another such offender not tried under F. C. R. Would be saved of this additional rigour. It would accordingly be an irresistible conclusion that the provisions as to the levy of collective fine, security, externment and additional punishment are in contravention to the Injunctions of Islam.
8. Mr. Nawaz Ahmed next contended that F. C. R. Was responsible to enforce such Customs and Usages ('Riwaj') many of which were against the principles of Islam, on those points. Then these 'Riwaj' were not uniform all over the areas to which F. C. R. Applied; with the result that there was diversity of decisions in same situations which fact gives rise to discrimination and is finally hit by the principles of equality as enshrined in the Holy Book. Quoting instances of such Customs he referred to the offences of theft, and adultery etc. Learned A: G. Pointed out that with the enforcement of laws pertaining to "Hadood" on 18th March 1979, in Baluchistan such cases were not to be decided in accordance with Customs ('Riwaj') any more. However, much need not be said about these customs and usages which undisputedly differ from tribe to tribe and place to place, as once the F. C. R. Is held to be voilative of Islamic Injunctions on other grounds and finally erased from the statute Book enforcement of such customs and usages will automatically disappear.
Otherwise, too we have dealt with the point of discrimination in suitable detail. Suffice it to say that this aspect of F. C. R. That it enforce such customs and usages which are basically against Islam is yet another aspect rendering it violative of Islamic Injunctions, for, later would not approve of directly or indirectly giving effect to a thing which is basically un-Islamic, or at least not strictly in consonance therewith.
9. It was also contended that F. C. R. Was opposed not only to the Fundamental Rights as have been guaranteed by all the Constitutions that have remained in this field since the emergence of Pakistan, but were also recognized by Islam, such as equal protection of laws, enforcement of "Just" law, and permission to a citizen to engage legal counsel to asset him in his defence, etc. Much has been said on the question of oneness of laws as well as enforcement of "Just" laws, and it need not be repeated here. As far as the facility to be represented by a counsel is concerned F. C. R. Debars it completely which is against Islamic Injunctions. Repugnancy of F. C. R. With the Fundamental Rights as guaranteed by the Constitutions of 1956 and 1562 (in later Constitutional documents also they found place in exact terms) came under consideration in both the case cited supra, and it was held in Khan Abdul Akbar Khan's case that section 1(4), F. C. R. Applied to Baluchis and Pathans only and section 8 which dealt with the reference of cases by the Deputy Commissioner to the "Council- of-Elders" were both violative of the provisions of the Article 5 of the later Constitution of 1956, then in currency, as they did not provide equal protection to Baluchis and Pathans with the rest of Pakistanis, and that by virtue of Article 4 they were ultra vires of the said Constitution. In this case since precise question of reference of civil cases to F. C. R. Was involved, therefore, we find no reference to section 11 which deals with the reference of criminal case. However, this section stands on same footings as section 8 and thus deserves same treatment. Subsequently in Malik Muhammad Usman's case (cited above) also various provisions of F. C. R. Including section 11 were examined, in the light of late Constitution of 1962 and it was held that section 8 thereof was ultra vires being opposed to Fundamental Right No. 15 of the said Constitution, in it, that it was discriminatory, placing different tribes within same area on different levels in the field of administration of justice. It was further held that section 36 of F. C. R. Which dealt with externments was also bad being discriminatory in nature. With regard to section 11, F. C. R. It was held that this provision read with Article 6 of the Constitution was patently against Fundamental Rights Nos. 1, 2 and 15. It was finally declared that both sections 8 and 11 were violative of Fundamental Right No. 15 as by mischief of these provisions a Deputy Commissioner enjoyed uncontrolled and unguided discretion to cause trial of a particular person under the discriminatory procedure of F. C. R. To quote from the judgment the wordings used by their Lordships are :-- "This is also repugnant to Fundamental Right No. I, being now settled that the 'Jirga' procedure cannot be described as law in any recognized sense of the term."
Here it would be most pertinent to mention that when sections 8 and 11 which are substantive provisions in nature fell, the entire superstructure of F. C. R. Was bound to completely collapse, as the scheme of this law owed its existence to these provisions alone. It is thus apparent that F. C. R. Is violative of abovesaid Fundamental Rights also which are recognized by Islam.
10. It would not be out of place to mention here that F. C. R. Always being a most controversial law as already mentioned, was examined by several Law Commissions in the light of social conditions now prevailing in this part of the country. They also tested it in the light of accepted principles of administration of justice operative in the rest of the country. Their views when perused would further strengthen the criticism to which it has always been subjected. The first Commission set up by the Provincial Government in 1958 to make recommendations necessary for bringing about uniformity of laws in the Province under the aegis of Late Justice Abdul Hamid Khan, inter alia recommended that :- "(a) The civil and criminal Courts created by the Codes of Civil and Criminal Procedures should be introduced in entire Baluchistan and no case should be referred for trial under the F. C. R. To Jirga.
(b) Sections 8 and 11, F. C. R. Should be repealed and all kinds of distinctions between special areas (now called "Tribal areas) and other areas be eliminated, and that if for any justifiable reason such special areas were necessary to be continued, all laws id vogue in West Pakistan should be introduced in Baluchistan."
In 1958 the Central Government appointed another Commission under Chairmanship of the then Chief Justice of Pakistan (Mr. Justice S. A. Rehman) which was also assigned the task of making recommendations for the reformation of legal system in the country and with respect to F. C. R. It recommended that :- "(i) In the interest of social and economic development in the region the 'Jirga' system should give way to move civilized laws, hence necessary effective steps should be taken, keeping in view the fact that this was ultimately bound to come to an end."
The third Commission was set up in the year 1967 by the Federal Government under the Chairmanship of Mr. Justice Hamoodur Rahman (as he then was) which included among its members the present Chief Justice of Pakistan. This Commission also took detailed account of F. C.
R. And other special laws prevalent in this region and recommended that all the special laws failed to fulfil the expectation of the Government as well as those of the people as they did not effect expeditious disposal of cases. Furthermore, people did not expect justice under such a system of laws. It also held that Jirga Members were incapable to decide complicated questions of law and that they were prone to political pressures. It finally held that within next 10 years a new Commission should be set up, to once again examine the situation of laws in this region and that within this period these laws should give way to other appropriate laws. Lastly the Government of Baluchistan set up a Commission in the year 1972 under the Chairmanship of an Ex-Judge of West Pakistan High Court (Justice Fazl-e-Ghani Khan) to formulate recommendations for the uniformity of laws in the Province. This Commission extensively toured the Province and formulated its recommendations in the light of the views of the people gathered by it, as well as under the guidance provided by other relevant material. It strongly recommended that all special laws (including F. C. R.) should be done away with as being unsuited to the Province not only in the interest of fair and impartial decision of the cases but also in the interest of people's social and economic advancement.
Accordingly in the light of above it shall be seen that F. C. R. Was opposed not only to the injunctions of Islam as enshrined in Holy Book and the Sunnah of the Holy Prophet (peace be upon him) but was also repugnant to Fundamental Rights guaranteed by various Constitutions in Pakistan which being in consonance with Islam violate its principles. Beside this they are also responsible for 'peoples backwardness to a very greater extent.
11. Before we part with the case the objection raised with regard to our jurisdiction may be dealt with. Mr. Basharatullah learned Advocate-I-General invited our attention to Article 203-B of the Constitution and argued that F. C. R. Being partly a procedural law, this Court had no jurisdiction to interfere with it, as far as its procedural part was concerned on the ground that term "law" as defined by this Article to fix the scope of this Court' jurisdiction did not cover the "Fundamental Laws". We have already observed above that F. C. R. Was strange mixture of interdependent substantive and procedural provisions and owed its very existence to sections 8 and 11 which are substantive provisions in their nature, hence once those provisions are held to be violative of the injunctions of the Holy Qur'an and the Sunnah of the Holy Prophet (peace be upon him) entire law is bound to fall as in the framework of F. C. R. There is no scope of saving any procedural provision and allow the remaining provisions to be erased from the scene. This argument has therefore, no force.
12. These are our reasons for declaring F. C. R. As a bad law by reason of its repugnancy with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him) on 18th August 1979.
This decision shall be effective from 15th October 1979.