ABDUL HAKEEM KHAN, C. J.-In this constitutional petition moved by Ali Muhammad it was prayed that the order of A. D. M., Dargai respond--ent No. 2 dated 17-6-1978 referring the case against the petitioner to a Tribunal constituted under Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation, 1975 (hereinafter called the Regulation) and eventual sentence of fine and direction that six Safeda trees in question shall be handed over to Wali Khan respondent No. 3 was without lawful authority, jurisdiction and of no legal effect.
2. Mr. Muhammad Afzal Bangash, learned counsel for the petitioner submitted that the provisions of the Regulation were by and large a replica of the Frontier Crimes Regulation, 1931, section 11 whereof provides for a procedure almost similar while there i5 an authority of the Supreme Court in Ch. Manzoor Elahi v. Federation of Pakistan etc. (PLD 1975 S C66), wherein their Lordships have held that section 11 of the F. C. R. Is not a law within the contemplation of Article 4 of the Constitution.
Since the point raised was of a considerable importance and it might have affected the jurisdiction of the Tribunal working throughout Malakand Division it was referred to a larger bench.
3. To make it clear we should like to observe that we have been called upon to give an opinion as to whether the Regulation is a law within the contemplation of Article 4 of the Constitution. .
4. We have heard the learned counsel on either side at length and regret to observe that the learned counsel for the petitioner did not invite the attention of the Division Bench to the observations of the Supreme Court in Federation of Pakistan and others v. Ch. Manzoor Elahi (PLD 1976 SC 330), Brig.) (Retd.)F. B. Ali and another v. The State (PLD 1975 SC 506) and Federation of Pakistan v. United Sugar Mills Ltd. (PLD 1977 SC 397). By the last mentioned authority the decision of the Supreme Court in PLD 1975 SC 66 to the extent that it had a bearing upon the present case had been overruled.
5, Even though the matter stands concluded by the authority of the Supreme Court as in PLD 1977 SC 397, we should like to refer to the relevant provision of the Constitution, namely Article 4 and give as briefly as possible our view on the point Article 4 of the Constitution lays down: "(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan.
(2) In particular-
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
The question that has been mooted before us is as to whether or not the Regulation is a law within the contemplation of Article 4 ibid. The learned counsel for the petitioner submits that the same is not a law and as already said, in this behalf he relies heavily on PLD 1975 SC 66 and Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14).
6. There is a lot of force in the observations made in Syed Sharifuddin Pirzada v. Federation of Pakistan and another (2), by Tufailally A. Rchman, C. J. That the use of the expression 'law' in Article 3 of the Interim Constitu--tion which is in pari materia with Article 2 of 1962 Constitution and Article 4 of the present Constitution could not be without special significance and that even though his Lordship was unable to read it as being a guarantee against legislation of any kind because the whole provision of the Article in question is to enjoy the protection of law and not to impose any restric--tion on the power to make law itself. But there also appears to be a lot of substance in what the learned counsel before his Lordship submitted that it would not be inappropriate in statutes of a constitutional character to declare a cherished doctrine of law which embodies the right of a people by way of re-affirming faith in that doctrine and a firm determination of adherence thereto. .7. Be that as it may the view that the Chief Justice took his Lordship felt reassured by the observations of Hamoodur Rahman, C. J. In Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri and which have also been relied upon in PLD 1975 SC 66 (pages 93 and 94). The observations are :- "In my view the words "in an unlawful manner" in sub-clause (b) of Article 98(PLD,1973 Kar. 132) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is thei nalienable right of every citizen to be treated in accordance with law and only in accordance with law. To my mind, therefore, in determining as to how and in what circumstances detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American "due process" clause in a new garb. It is in this sense that an action, which is mala fide or colourable, is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations also is not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in -accordance with law and would therefore, have to be struck down as being action taken in an unlawful manner."
8. It will be seen that the decision in Ch. Manzoor Elahi's case did not hold the field for long. In a subsequent case F. B. Ali v. State when it was mooted before their Lordships that the Ordinances extending the Army Act were not law for they purported to unreasonably deprive a citizen of even the norms of a judicial trial Hamoodur Rahman, C. J. Himself observed as follows:- "it is first sought to be contended that the Ordinances were not law at all, because, they purported to unreasonably deprive a citizen of even the norms of a judicial trial. But this generalization cannot be accepted. Law has not been defined in the Constitution of 1962 and, therefore, in its generally accepted connotation, it means positive law, that is to say, a formal pronouncement of the will of a competent lawgiver. There is no such condition that a law must in order to qualify as a law also be based on reason or morality. The Courts cannot strike down a law on any such higher ethical notions nor can Courts act on the basis of philosophical concepts of law as pointed by me in the case of Asma Jilani. This claim was abandoned even in England as long ago as 1871. ------..--- On page 545 of this very report Muhammad Yaqoob Ali Judge as his Lordship then was quoted from his Lordship's own judgment in Ch. Manzoor Elahi's case and explained that the observations were confined to 'decrees and 'behests' of a ---usurper--- and not laws enacted competently by a Parliament. His Lordship then proceeded to consider the Frontier Crimes Regulation and referred to previous authorities on the subject and further added on page 548 of the report that his Lordship's observations made in the cases of Asma Jilani and Mauzoor Elahi were confined to the facts of those cases and do not enunciate that Courts can strike down a law made competently by a Legislature on the ground of reason or morality. His Lordship elaborated further that laws-made by a Legislature can be struck down only if they are repugnant to the provisions of the Fundamental Law under which the Legislature is itself created.
9. The State submitted a review petition in Ch. Manzoor Elahi's case and the decisionthereon is reported in PLD 1976 SC 430 wherein their Lordships observed that the views expressed by them about Article 4 and others were not conclusive and that the controversy will be resolved in some future case. That future case it seems to us came up soon afterwards as the report in PLD 1977 SC 397 will show and their Lordships have reverse their view in Ch. Manzoor Elahi's case and the following observations oq Muhammad Gul, J. From that authority can be quoted with advantage:- In support of this part of argument, learned counsel relied on certain observations made in the case of Chaudhry Manzoor Elahi v. Punjab Government according to which, the expression "law" as used in Article 2 and Fundamental Right 1 in Chapter I, Part II of the 1962 Constitution was not necessarily confined to statute law or positive law but also covered "judicial Principles laid down from time to time by the superior Courts and juridical norms obtaining in Pakistan." But this wider connotation of the word "law" was rejected later in the majority decision in F. B. Alt v. The State wherein according to the view of the majority the expression "law" in Article 4 of the present Constitution which is in pari materia with Article 2 of the 1962 Constitution; means only "positive law". The majority in that case relied on the dictum in the case of Asma Jilani wherein after au elaborate discussion Hamoodur Rahman, C. J. Reached the conclusion that connotation of the word "law" is restricted to positive law that is to say a formal pronouncement of the will of a competent law-giver and did not include what were mere legal precepts or theories.
I have further considered this aspect of the matter and remain confirmed in my view that the term "law" as used in the above constitutional provision has also been used in Article 8 of the Constitution in contradistinction with any "custom or usage having the force of law" and limited connotation in Article 4 as well. For instance the expressions like "proper law of the contract", "law of Domicile" and "the practice of the Court", which are essentially in the nature of usages or practices observed in the relevant fields and are well recognized by Courts of law. In the event of any question as to the 1 existence of any one of these, it has to be proved by evidence, as a fact. It will, in my humble opinion, be erroneous to equate these practice for usages or customs with a statute law or to attach to them any higher validity.
10. But this should not mean that the premises on which the argument was addressed to us by the learned counsel for the petitioner was sound. It is true that section 11 of the F. C. R. And section 7 of the Regulation are in pari materia but we cannot overlook that paragraph 4 of the Regulation gives cognizance to the Tribunal only when both the parties have agreed in respect of an offence falling in Part II of the Schedule and as far as Part I of the Schedule is concerned that has to go before the Tribunal. The Deputy Commissioner or the Magistrate has no discretion in the matter, so to speak, he cannot pick and choose what case should go to the Tribunal and what should not go to the Tribunal. The jurisdiction has been spelled out and clearly defined by the Regulation itself. The procedure before the Tribunal has been laid down in paragraph 9.Furthermore paragraph 23 allows an appeal and paragraph 27 permits the appearance of a legal practitioner. Again the procedure outlined in paragraph 9, lays down that an opportunity to the parties should be given, they should be allowed to lead evidence and furthermore the parties shall have the opportunity of cross-examining the witnesses -deposing against them. These features of the Regulation are salutary and all that has been said about the F. C. R. Is not true in the case of Regulation.
11. For the reasons we are of the opinion that the Regulation is a law under Article 4 of the Constitution.