Before Muhammad Jan, J.
LANGAR KHAN – Convict-Petitioner
THE CROWN – Respondent

Criminal Miscellaneous petition no. 1287 of 1946, decided on 1st May 1947, under sections 491, 498 and 561-A., Criminal Procedure Code, praying that the petitioner may be set at liberty and the judicial proceedings may be quashed.

(a) Frontier Crimes Regulation 1901 – Order of reference to Jirga by Deputy Commissioner – Order an executive act not open to revision by High Court.

The order of reference to a Jirga by the Deputy Commissioner, in places where the Frontier Crimes Regulation applies, is an executive act and such an order is not open to revision b y the High Court.

(b) Frontier Crimes Regulation 1901 – Person detained under – Criminal Procedure Code (V of 1898), S. 491, Whether can be invoked.

Under S. 491, cl. (b), Criminal Procedure Code, the High Court can set a person at liberty only if the person is illegally or improperly detained. Since an order of reference to a Jirga under the Frontier Crimes Regulation is not open to revision by the High court, the High Court is not in a position to determine whether the reference to Jirga was illegal or not and consequently it could not be held that the detention as a result of the decision by the Jirga was illegal or improper. [p. 128].

(c) Punjab Ordinance (II of 1946), S. 2 – Arrest of person released before Ordinance enacted – Whether valid.

Section 2 of Punjab ordinance (II of 1946) validates all acts done and proceedings taken in execution of or in compliance with any order made or sentences passed in exercise of the powers conferred by the Frontier Crimes Regulation of 1901. The power to arrest a person released before the Validating Ordinance and to commit him to jail is, an act in execution of the sentence passed on him. The arrest therefore, is legal. [p. 128].

(d) Frontier Crime Regulation 1901 – Existence of custom or usage of for deciding disputes by Jirga – Whether separate finding by Deputy Commissioner necessary before reference.

Where it was contended that before a Deputy Commissioner can convince a Jirga he must determine that, amongst the particular class or type of people to whom the accused belongs, there exists a custom or usage for deciding disputes by Jirga. [p. 128].

Held, that even if there is no separate order determining this point, the very fact of the case having been referred to a Jirga by the Deputy Commissioner is, by implication, a determination of eh fact that the necessary conditions for the reference exist, at least in his opinion. [p. 128].

(e) Obiter dicta – Observations of the nature of, by superior court – Not binding in every case on subordinate courts. [p. 128].

Gopal Singh, for Petitioner.
Visheshar Nath Sethi, for the Advocate General, for Respondent.