SHERZADA KHAN Versus COMMISSIONER (F. C. R.), PESHAWAR

After going through the judgment of my learned brother Abdul Hakeem, J., proposed to be delivered in this case, I agree with him that this petition be dismissed, but on quite different grounds. I, therefore, proceed to record my own judgment.

Saleh Muhammad, a resident of Village Kopar of the Malakand Pro tected Area, was murdered on 30-11-67. Baghi Jan father of the deceased reported the matter to the authorities on 2-12-67, charging Aseem Khan and Abdul Hakim. The Political Agent, Malakand Agency by his order dated 22-1-68 referred the case against the accused to a Council of Elders under section 11 of the F. C. R. On the recommendation of the Council of Elders the learned Political Agent by his order dated 6-4-68 acquitted Abdul Hakim accused but convicted Aseem Khan under section 302, P. P. C. read with section 11, F. C. R. and sentenced him to undergo 14 years' R. I. He was also declared enemy of the complainant and his relations and precluded from residing in the area Sakhakot after the expiry of his sentence. This sentence was subject to confirmation by the Commissioner, F. C. R., Peshawar.

Two revision petitions were filed before the Commissioner ; one by the accused and another by Baghi Jan father of the deceased, and the case was also laid before the Commissioner for the confirmation of the sentence. The Commissioner by his order dated 25-11-68 confirmed the sentence and dismissed both the petitions. The convict thereafter, it is admitted by both the parties, was lodged in Central Jail, Peshawar.

2. On 6-1-69 Sherzada, son of Aseem Khan convict filed this writ petition under Article 98 of the then Constitution read with section 491, Cr. P. C., against the Commissioner, F. C. R., Political Agent, Malakand and the Superintendent, Central Jail, Peshawar, praying for declaring the orders of respondents Nos. 1 and 2 regarding the conviction of the accused to be without jurisdiction, illegal, null and void. Since I was of the opinion that this Court had no jurisdiction to hear this petition as it was in relation to a tribal area, in the circumstances Mr. Zahurul Haq, Advocate for the petitioner and the Advocate-General for the State were, therefore, heard at length on this aspect of the case.

After discussing the various Constitutional Provisions and the various authorities of the High Court and Supreme Court my learned brother has come to the conclusion that this Court has jurisdiction to hear the peti tion. In fact he has, assuming jurisdiction, given his finding in the case on merits. On the other hand I am of the opinion that this Court has no jurisdiction to hear this petition as it relates to a tribal area.

3. There is no dispute that the occurrence took place in the tribal territory and that the accused was tried and convicted in the said territory. There is also no dispute that the jurisdiction of this Court did not extend to the tribal territories under Article 223(5) of the Constitution of 1962, Article 261(7) of the Interim Constitution and Article 247(7) of the present Constitution. For convenience these three provisions are reproduced here:

"Article 223(5).-Notwithstanding anything in this Constitution, neither the Supreme Court nor a High Court shall, unless the Central Legislature by law otherwise provides, exercise any jurisdiction under this Constitution in relation to a Tribal Area.

Article 261(7).-Neither the Supreme Court nor a High Court shall exercise any jurisdiction under this Constitution in relation to a Tribal Area, unless the Federal Legislature by law otherwise pro vides .

Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day.

Article 247(7).-Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless Parliament by law otherwise provides:

Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day."

4. Regulation I of 1969, referred to by my learned brother has no relevance to the jurisdiction of this Court, as according to the said Regula tion only the administration of certain States and tribal areas has been transferred to the Provincial Government. Similarly, Order XXVIII of 1970, has also no relevance as by it only limited jurisdiction of this Court has been extended to the tribal area in question. There is no doubt that the jurisdiction of this Court had been extended to the tribal area in question by Act XXVII of 1973, which was published on 9-2-73, but then this Act is not retrospective in effect and cannot confer jurisdiction on this Court to hear writ petitions which were filed much earlier than 9-2-73.

5. The only grounds on which learned counsel for the petitioner wanted us to assume jurisdiction were as follows:

(1) That the order of conviction and sentence had been confirmed and revision petitions against it dismissed by the Commissioner at Peshawar, which place was within jurisdiction of this Court.

(2) That the petitioner was held in detention in Central Jail, Peshawar, which was within jurisdiction of this Court.

It has, therefore, to be seen as to whether these two grounds, or anyone of them could enable the High Court to exercise its writ jurisdiction in rela tion to a tribal area. In this connection the following authorities were cited by counsel for the parties and most of which have also been referred to by my learned brother in his proposed judgment.

P L D 1958 S C (Pak.) 533, P L D 1960 S C 307, P L D 1963 S C 373, P L D 1955 S C 671, P L D 1967 S C 149, P L D 1968 S C 131, 1968 S C M R 974, P L D 1969 S C 344, P L D 1969 S C 485 and P L D 1974 SC109.

There is no doubt that a Division Bench of this Court assumed jurisdic tion in relation to the tribal territory in Writ Petition No. 62 of 1969, Khan Bahadur v. The Commissioner, F. C. R., Peshawar and others decided on 7-12-71 and No. 356 of 1965, Ghulam Sarwar v. The Superintendent, Central Jail, Peshawar and others, decided on 7-2-74, on the ground that the convict was lodged in jail within its jurisdiction, but then in those cases all the authorities, especially 1968 S C M R 974, were not brought to its notice and the authority reported in P L D 1974 S C 47 was, not even in existence in one case. After going through all the authorities mentioned above I am of the opinion that these do not show that the High Court could exercise its writ jurisdiction in relation to the tribal territories merely on account of the existence of the two or anyone of the two grounds mentioned above.

6. I now proceed to examine the authorities mentioned above one by one.

P L D 1958 S C (Pak.) 533-

This authority clearly goes against the contention of the learned counsel for the petitioner. It has been held therein that if the trial and all pro ceedings up to the conviction are held in a special area, the High Court has no authority to decide whether the trial and conviction were legal or other wise. In the instant case all the proceedings up to conviction were held in the tribal area. So far as the lodging of the accused in Peshawar Jail is concerned, it has been held in the said authority that the High Court could only look into the jail warrant to satisfy itself as to whether it was actually issued by a proper authority or not and in the instant case it is not the petitioner's case that the warrant had not been issued by the Political Agent.

P L D 1960 S C 307-

This authority also does not help the petitioner, as in that case all the proceedings right from the start up to the conviction had been held at Peshawar and it was only for the annqunpeul9nt of the judgment that the Political Agent went to the tribal area. Under those circumstances it was held that this Court could look into the proceedings conducted within its jurisdiction. In the instant case no proceedings were conducted within the jurisdiction of this Court.

PLD 1963 SC 373 ; PLD 1965 SC 671-

These authorities do not concern the tribal areas and are, therefore, of no avail so far as the present case is concerned.

PLD 1967 SC 149-

This authority also does not help the petitioner as in it only the autho rities of 1958 and 1960 mentioned above have been restated with clarity. In this authority too it has been held that if all proceedings are held in the tribal area and the warrant issued for detention is also from the said area, then the High Court has no jurisdiction in the matter. If, however, the convict is held in detention within the jurisdiction of the High Court, then the High Court could only examine the warrant of detention for seeing as to whether it was on the face of it properly issued by a proper authority. If on the other hand some proceedings are held within the jurisdiction of the High Court, then the High Court had the jurisdiction to examine the prop riety and correctness of those proceedings. This authority does not lay down that if the convict is merely held in a jail within the jurisdiction of the High Court, then the High Court would have the jurisdiction to examine the cor rectness and propriety of his trial and conviction, even if that trial and conviction had been held and recorded in a tribal area.

PLD 1968 SC 131-

This authority too does not help the petitioner in any way because in it the same principle, as enunciated in the 1958 authority, has been applied. The summons which was issued from the tribal area was executed within the jurisdiction of the High Court and the High Court and for that matter the Supreme Court had the jurisdiction to look into it for ascertaining whether on the face of it, it was issued by a proper authority. On examin ing the summons it transpired that it was not issued by a proper authority as the A. D. M. had no power to try and determine a civil suit. Besides, in this authority the bar of jurisdiction created by section 60 of the F. C. R. had only, been considered and the Constitutional bar of jurisdiction had not at all been referred to. The case would have been quite different if the summons had been issued by the A. D. M. to a person within the tribal area of North Waziristan and on his behalf the Supreme Court had quashed it. As a matter of fact a close perusal of this authority clearly shows that if the summons had been issued by the A. D. M. for informing the petitioner in that case of his intention of referring the case to a Council of Elders under section 8(1), F. C. R., then the Court would at all have inter fered. In this connection the next authority reported in P L D 1969 S C 344, has made the position quite clear. In this authority it has been clearly held that even if a warrant which is issued from the tribal area by a proper authority is to be executed in an area within the jurisdiction of the High Court, still the High Court and the Supreme Court, would have no jurisdiction either to quash the issuance of the warrant or stop its execu tion within their jurisdiction.

1968 S C M R 974-

This authority also clearly goes against the contention of the learned counsel for the petitioner. In this case the order of conviction was passed and the sentence of fine imposed by the Political Agent at Peshawar where his office is situated and the fine recovered was also deposited at Peshawar, but still it was held that the High Court and the Supreme Court could not interfere as the order of conviction and sentence was in relation to a tribal area. It may also be mentioned here that in this case the revision petition of the accused had been heard and disposed of by the Commis sioner at Peshawar but despite that fact it was held that the High Court and the Supreme Court could not interfere with the conviction and sentence.

PLD 1969 SC 485-

This authority also does not help the petitioner as in this reported case the principle enunciated in P L D 1967 S C 149 and P L D 1969 S C 344 only has been restated. In the reported case the High Court was held to have jurisdiction in the matter because the truck and the goods seized were at Peshawar within the jurisdiction of the High Court and the Customs authorities who were to pass any order with respect to those properties were also at Peshawar within the jurisdiction of the High Court. It was under those circumstances that it was held that since the order had to 'be carried out within the territorial limits of the jurisdiction of the High Court, it could lawfully have assumed jurisdiction for issuing a writ. The mere detention of the convict in jail within the jurisdiction of the High Court could not, therefore, enable the High Court according to this authority to issue a writ which shall have effect of annulling the trial and conviction held in a tribal area.

P L J 1974 S C 47--

In this authority it has been clearly held that the mere fact that a revision petition against the trial held and conviction recorded in the tribal area .had been heard and disposed of within the jurisdiction of the-High Court would not give the High Court jurisdiction to look into the correctness and propriety of the conviction and sentence.

It is, therefore, abundantly clear that none of the authorities cited above enables the High Court to assume jurisdiction in relation to trials con ducted and convictions recorded in the tribal area merely on the ground that either the convict had been lodged in a jail within the jurisdiction of the High Court or an order in respect of confirmation or revision had been passed by any authority within the jurisdiction of the High Court.

7. This view appears to be correct on general principles as well. No jail can be maintained in a tribal area for security reasons and there must be an order of the appropriate Government for keeping persons convicted in the tribal area in jails in the settled area within the jurisdiction of the High Court. The mere bringing of a convicted person from confinement in a tribal area to confinement in jail in a settled area could not, therefore, enable the High Court to look into the legality and prod of the trial held and conviction recorded in the tribal area. It would clearly amount to the passing of an order in relation to a tribal area for which the jurisdiction of the High Court has been barred by the Constitu tion. It also does not stand to reason that if a jail is constructed and maintained in a tribal area- and a person tried there and sentenced to 14 years' R. I. is kept there for 10 years and then transferred to a jail in the settled area within the jurisdiction of the High Court, the High Court would at once get jurisdiction to question the trial and conviction.

8. So far as the exercise of the powers of revision and confirmation by the Commissioner are concerned, irrespective of the Government authorities referred to above according to which the exercise of these powers within the jurisdiction of the High Court does not enable the High Court to assume jurisdiction in relation to a thing done in the tribal area, I am of the opinion that since the Government and the Commissioner both have jurisdiction within the settled as well as the tribal areas, any order passed by them in relation to a tribal area even if passed in the settled area will be assumed to have been passed in the tribal area and the question of the High Court exercising jurisdiction with. respect to it would not arise. Even if it be assumed that the High Court had the jurisdiction to scrutinise the orders passed by any authority within its jurisdiction in such like cases, that would not serve se. The High Court would be able to scrutinize and quash any useful purpose the orders passed by the Commissioner or by the Government, but then the order passed by the Political Agent would still be valid and will hold the field.

9. Besides, if the provisions of the F. C. R. for the confirmation of sentences by the commissioner and the hearing of revision by the Government could enable the High Court to exercise its jurisdiction in relation to the tribal area, then these provisions would be ultra vires the Constitution, and unenforceable, because the Constitution expressly bars the jurisdiction of the High Court in relation to a tribal area and the Government by subordinate legislation could not confer jurisdiction on the High Court in relation to a tribal area.

10. The omission of the phrase "notwithstanding anything in the Constitution" of the 1962 Constitution from the Interim and the present Constitution does not make any difference as there is no other provision in the two Constitutions enabling the High Court to exercise jurisdiction either within or in relation to the tribal area.

11. In the end I may mention here with respect that I cannot subscribe to the view of my learned brother that if oppressive laws or laws which are ultra vires the Constitution are enforced in the tribal areas, then the High Court should not sit as a silent spectator but should intervene. The High Court, opinion, is not the Custodian of law for the whole world. It is only Custodian of law for the area of its jurisdiction. If the High Court has no jurisdiction in an area, it is not to worry about it whatever happens there.

The net result is that respectfully following the authorities of the Supreme Court I would dismiss this petition on the ground that we have no, jurisdiction to hear it.

K.B.A Petition dismissed.