MANZOOR ELAHI Versus FEDERATION OF PAKISTAN

1. HAMOODUR RAHMAN, C. J. ‑I have now had the advantage of reading in advance the opinions proposed to be delivered by my learned brothers, Muhammad Yaqub Ali, Salahuddin Ahmad and S. Anwarul Haq, JJ. I am in agreement with their conclusions that Criminal Appeal No. 2 of 1974 should be dismissed and that no order should be passed in Original Constitutional Petition No. 61‑P of 1973 but I regret my inability to agree with 0them that Civil Review Petition No. 37 of 1973 should also be allowed.

2. Civil Review Petition No. 37 of 1973 is a petition for the review of a judgment of this Court in the case of Hafiz Umar Gul and another v. Government of Pakistan (P L D 1973 S C 544), which was announced on the 2nd February 1973, and was published in the August 1973 issue of the P. L. D. (now reported as P L D 1973 S C 544). The review petition, which was filed on the 27 th September 1973, is therefore, out of time by 208 days. An application has, however, been filed for the condonation of the delay on the ground that the learned Attorney‑General had noticed the judgment only after it was published in the August issue of the P. L. D. and had then taken immediate steps to file the review petition. This, in my opinion, is not a sufficient ground for condoning the delay.

3. The Government of Pakistan, whom the learned Attorney‑General now represents, was a party to the proceedings in that case. It was represented at the hearing by Mr. Khalilur Rahman who in turn was instructed by the Advocate‑on‑Record for the Government of Pakistan, Mr. Iftikharuddin Judgments of this Court are announced on notice to the Advocates‑on‑Record for the parties and in the absence of any allegation that this was not done in the present case, I am entitled to assume that this practice was followed. Indeed the record discloses that notice was served on the Advocate‑on‑Record for the Government on 1st February 1973. He, therefore, knew of the decision on the day it was announced. It was his duty to inform the Government of the decision of the Court and if the Government then wished to file a review, it should have through the Ministry of Law obtained a copy of the judgment and taken steps to file the review in time. There is nothing in the petition for condonation to show that the Government did not obtain a copy of the judgment or was not aware of it soon after it was announced, The learned Attorney‑General was not a party to the proceedings nor is he a person aggrieved by the decision of the Court nor is he tile applicant in the review petition. In the circumstances his knowledge is wholly irrelevant for the purposes of condonation of the delay. I am unable, therefore, to accept the ground now disclosed in the petition for condonation as a sufficient ground for the condonation of the delay.

4. In any event, as my learned brother S. Anwarul Haq, J, has pointed out, the question, even so far as the tribal areas of N.‑W. F. P. are concerned. I has now become academic, because, the jurisdiction of the Supreme Court and the High Courts has since been extended by the Supreme Court and High Courts (Extension of Jurisdiction to Tribal Areas) Act, 1973 (Act XXVII of 1973) to the provincially administered tribal areas of Chitral, Dir, Swat and Malakand areas.

5. This Act was published in the Gazette of Pakistan on the 9th of February 1973, within a week of the announcement of the decision of this Court.

6. I am not also impressed either by the argument of undue hardship or chaos in the administration of the laws in these areas, because, I find that, on the 9 th September 1965, the President, in exercise of the powers conferred upon him by clause (2) of Article 2?3 of the Constitution of 1962, did actually make a Regulation called the Tribal Areas (Application of Acts) Regulation 1965, extending some nineteen existing Acts, such as, the Sea ‑Customs Act, the Telegraph Act, the Passports Act, the Post Offices Act, etc., to the tribal areas ; vide pages 1016 to 1018 of the Gazette of Pakistan, (Extraordinary) published on the 10th of September 1965. If these laws, being existing laws were already applicable in the tribal areas, as held by, my learned brethren, then there was no need to extend them again in 1965 to the said areas. The fact that this was nevertheless done would seem to support the majority view in Hafiz Umar Gul's case.

7. The case of Hafiz Umar Gul related to the tribal territory of Dir and the question that arose for decision in that case was as to whether the writ jurisdiction of the High Court extended to that territory on the 24th; September 1963 when the writ petition was filed. The decision in that case' was in accordance with the law prevailing on the 24th September 1963 and has to be read in the light of the facts of that case. The Court was note concerned, when deciding that case, with the tribal areas of Baluchistan or Quetta Division and, therefore, no reference could be made in that judgment, to the Tribal Areas (Restoration of Jurisdiction) Act, 1964 (Act II of 1964) which had not even come into existence in 1963. It was enacted on the 10th` April 1964 and given retrospective effect from 10th January 1964. The latter Act restored the jurisdiction of the Supreme Court and the High Court in the tribal areas of the Quetta Division.

8. The decision in the case of Hafiz Umar Gul is, therefore, not a decision affecting the vires of Act II of 1964 nor is it a decision which is applicable the tribal areas of Baluchistan.

9. In these circumstances, I am not persuaded that there is any necessity at all for the review of the judgment in the case of Hafiz Umar Gul nor are there any valid grounds for condoning the inordinate delay in the moving of the application for review. I would, therefore, dismiss it in limine on the ground that it is hopelessly barred by time.

10. So far as the original Constitutional Petition No. 61‑P of 1973 is concerned, I entirely agree with the elaborate reasons given by my learned brother, S. Anwarul Haq, J for not passing any order thereon. It is no doubt correct that the jurisdiction of this Court under clause (3) of Article 184 can be invoked when a question of public importance with reference to the enforcement of any of the fundamental rights is involved but I would like to add, since this is the first application of its kind, that it does not follow from this that this Court is hound to exercise these concurrent powers even where these conditions are fulfilled for this is only an enbaling provision. If the jurisdiction of any of the High Courts has already been invoked under Article 199 of the Constitution and the matter pending adjudiction there then two further well‑established principles become attracted. The first is that where two Courts have concurrent jurisdiction and a petitioner has already elected to invoke the jurisdiction of one of such Courts then he should be bound by his election and must pursue his remedies in that Court. The second is that if one of the Courts having such concurrent jurisdiction happens to be a superior Court to which an appeal lies from the other Court of concurrent jurisdiction then the superior Court will not normally entertain such an application after a similar application on the same facts has already been filed and is pending adjudication in the lower Court, because, that would deprive one of the parties to the litigation in the lower Court of his vested right of appeal conferred by another provision of the Constitution, namely, Article 185.

11. This is an extraordinary power which should be used with circumspection as was done by this Court even earlier when a similar concurrent jurisdiction was vested is the Supreme Court under Article 22, of the Constitution of 1956. It is not without significance that there is only one reported case where suit a jurisdiction appears to have been invoked : vide Begum Zaibun Nisa v. Pakistan (P L D 1958 S C (Pak.) 35).

12. In the present case, as pointed out by my learned brethren, the other conditions are amply fulfilled. The violation of Fundamental Right No. 9 is alleged and the other questions raised are, without any doubt, questions of great public importance as enumerated in the opinion of my learned brother S. Anwarul Haq, J. Nevertheless, since a constitutional petition under Article 199 of the present Constitution, being No. 1143 of 1973, is still pending adjudication on merits before the Sind & Baluchistan High Court, I agree that no order should be passed on this Petition No. 61‑P of 1973 and the petitioner should be left to pursue his Petition No. 1143 of 1973 in the said High Court.

13. Criminal Appeal No. 2 of 1974, which arises from the decision of the Sind & Baluchistan High Court in Constitutional Petition No. 1143 of 1973 on only a preliminary point relating to jurisdiction, a short order was dictated by me earlier announcing our decision that the appeal should be dismissed. Reasons had only to be given for this order. My learned brethren have given their separate reasons. I am in agreement with them that Act II of 1964, which was enacted on the 10th April 1964, after the incorporation of clause (5) in Article 223 of the Constitution of 1962 did not require any further direction of the President for being made applicable to the tribal areas. The provisions of this clause (5) were to prevail "notwithstanding anything in this Constitution" and, therefore, this excluded the operation of even clause (1) of Article 223. The latter in no way controlled the provisions of clause (5). The law of the Central Legislature extending the jurisdiction of the Supreme Court and the High Courts to the tribal areas of Quetta Division did not, therefore, require any further direction to become applicable to the tribal areas. Act II of 1964 which was made specifically to restore the jurisdiction of the Supreme Court and the High) Courts to the tribal areas of Quetta Division and given retrospective effect from the 10 th January 1964, i.e., the date on which the Constitution (First Amendment) Act, 1963 came into force and brought in the fundamental rights, was a valid law which by its own force extended the jurisdiction of the Supreme Court and the High Courts to the tribal areas of the Quetta Division with which we are concerned in the present appeal.

14. This law furthermore became an existing law under the Interim Constitution of 1972 and the Constitution of 1973. Neither for first part of clause (7) of Article 247 of the Constitution of 1973 nor the first part of clause (7) of Article 262 of the Interim Constitution rendered this law ineffective or tools away this jurisdiction because of the provisos appended to each one of these clauses preserving the jurisdiction which the Supreme Court or a High Court exercised in relation to the tribal areas immediately before the commencing day.

15. This is the only ground on which the High Court has decided the prelimi nary point relating to its jurisdiction. All other questions relating to the alleged illegality of the arrest of the detenu, the mala f ides or otherwise of the action, the validity of a trial by a jirga under the Frontier Crimes Regulation after the coming into force of the Constitution of 1973, raised in the petition before the High Court, still await decision. I would, therefore, dismiss this appeal on the short ground relating to jurisdiction, which I have discussed and would refrain from expressing any opinion on the other questions, which have yet to be decided by the High Court.

16. I would, therefore, dismiss Criminal Appeal No. 2 of 1974 and leave the High Court to dispose of Constitutional Petition No. 1143 of 1973 as expeditiously as possible. During the pendency of the said petition in the High Court the detenu will continue on the bail already granted to him by this Court.

17. MOHAMMAD YAQUB ALI, J. ‑There are three matters before the Court. The first of the two petitions is moved by Ch. Manzur Ilahi under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, for release from custody of his brother Ch. Zahur Ilahi, Member, National Assembly. The second petition is filed by the Government of Pakistan through the Secretary, Tribal Areas, for review of the judgment delivered by this Court in the case of Umar Gul v. Government of Pakistan and others (P L D 1973 S C 544). The majority decision given in this case is that the President Order XI of 1961 which restored the jurisdiction of the High Court of West Pakistan in relation to Tribal Areas did not survive after coning into force of the Consti tution of 1962 as no direction to that effect was given by the President as required by clause (1) of Article 223. Criminal Appeal No. 2 of 1974 is by the Province of Baluchistan against the order passed by a Division Bench of the Sind & Baluchistan High Court in the case of Malik Ghulam Jilani v. The Province of Baluchistan and the Assistant Commissioner, Kohlu. By the impugn ed order the High Court has held that it has jurisdiction to issue writs in relation to Tribal Areas of Quetta Division in the Province of Baluchistan where Ch. Zahur Ilahi was under detention at the relevant time.

18. I will first address myself to the Constitutional Petition 61‑P of 1973. Ch. Zahur Ilahi was under detention in the Tribal Area of Quetta Division in the Province of Baluchistan when this petition was filed under Article 184(3) of the Constitution for enforcement of Fundamental Right No. 9 which guarantees that no person shall be deprived of his life and liberty except in accordance with law. It is the case of the petitioner that it means that no person shall be deprived of his liberty except in honest implementa tion and execution of law. It is alleged in paragraph 15 of the petition that the prisoner has been taken into custody mala fide for political reasons and to put pressure on him, his relatives and associates.

19. No written reply was filed by the State or the Province of Baluchistan, 'but it was contended from the bar on their behalf that it was not a fit case in which this Court will exercise jurisdiction under Article 184(3) of the Con stitution and that in any case clause (7) of Article 247 was a complete bar to the exercise of jurisdiction by this Court in relation to a Tribal Area where the prisoner was in custody when the petition was made. Clause (3) of Article 184 provides as under:‑

20. "(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights con ferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."

21. The relevant provisions of Article 199 are as follows:

22. "199‑(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,‑

(a) on the application of any aggrieved party, make an order‑

(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do ; or

(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing function in connec tion with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect ; or

(b) on the application of any person, make an order‑

(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner ; or

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office ; or

(c) on the application of any aggrieved person, make an order giving, such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to,, any territory within the jurisdiction of that Court as may be appro priate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II.

(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II shall not be abridged."

23. Both my learned brethem have held that a question of public importance with reference to enforcement of Fundamental Right is involved in this case within the purview of clause (3) of Article 184 and I respectfully agree with their reasonings and conclusion on this point.

24. The main question argued from the bar was whether this Court or the High Court of Sind & Baluchistan has the jurisdiction to issue a writ for enforcement of Fundamental Right No. 9 and direct release of the prisoner who was under detention in the Tribal Areas of Quetta Division in the Province of Baluchistan when this petition was moved. The answer to this, question depends on the construction we place on clause (7) of Article 247 of the Constitution and the proviso to it which are reproduced below:‑

25. "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

26. 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."

27. The key words in clause (7) of Article 247 are "in relation to a Tribal Area". it has been rightly found by my learned brethern that the High Court of Sind & Baluchistan has by virtue of President's Order 11 of 1961 and Act II of 1964 jurisdiction to issue writs in relation to Tribal Areas and that by virtue of the proviso, reproduced above, clause (7) of Article 247 has not taken away that jurisdiction. Salahuddin Ahmad, J. has held that the High Court also has the jurisdiction to enforce Fundamental Rights. Anwarul Haq, J. has held that as jurisdiction to enforce Fundamental Rights was never conferred on the High Court, neither President's Order 11 of 1961 nor Act II of 1964 has the effect of conferring that jurisdiction on the High Court. The view I have taken bye‑passes this controversy. I will not, therefore, express any final opinion on this issue.

28. While I fully concur in the view expressed by my learned brethern that the High Court has the jurisdiction to issue writs in relation to Tribal Areas, I would give my own reasons for reaching this conclusion.

29. Part II Chapter I of the Constitution contains in all twenty Fundamental Rights which provide for security of person, safeguard as to arrest and detention, prohibition of salvery, forced labour, etc. Most of these Rights, reflect the Charter of Human Rights adopted by the United Nations Organi zation and to which all States are required to subscribe when admitted as members to the Organization. These rights are by now also incorporated in the written Constitutions of a number of civilized States of the world. Pakistan has, in fact, improved on them in more than one respect.

30. Firstly Article 8 provides that any law or any custom, or usage having the force of law so far as it is inconsistent with the Fundamental Rights shall to the extent of such inconsistency be void. Clause (2) takes care of future legislation. It enjoins that the State shall not make any law, which takes away or abridges the rights so conferred and any law made in contravention of this clause shall to the extent of such contravention be void. Clause (5) further provides that the Fundamental Rights conferred by Chapter I shall not be suspended except as expressly provided by the Constitution.

31. If the President is satisfied that a grave emergency exists in which the security of Pakistan or any part thereof is threatened by war or external aggression or by internal disturbance beyond the power of a Provincial Government to control, he may under Article 232 issue a Proclamation of Emergency. When such a Proclamation is in force the State may make temporary laws repugnant to Fundamental Rights 15, 16, 17, 18, 19, and 24 which secure for the citizens freedom of movement, freedom of assembly, freedom of association, freedom of trade, business or profession, freedom of speech and protection of property rights. Thus even in case of Emergency the State cannot make laws, which are violative of the remaining Fundamental Rights including Rights contained in Article 9 and Article 10.

32. We may also notice in this context that under clause (2) of Article 233, the President may by order declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter I, Part II, as may be specified in the order shall remain suspended for the period during which the Proclamation is in force. But this power is made subject to the restriction contained in the proviso to clause (2) of the preceding Article 232 viz., that nothing contained in paragraph (c) of the sub‑Article which makes provision for assumption of certain powers by the Federal Government, while the Proclamation of Emergency is in force, shall authorise the Government to assume to itself or direct the Governor of the Province to assume on its behalf any of the powers vested in or exercise-able by a High Court or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts. One of the provisions relating to High Courts is contained in Article 199 which has been reproduced above.

33. The power conferred on the High Courts by this Article cannot, there fore, be suspended while the Proclamation of Emergency is in force. In other words the High Courts will continue to give directions to persons performing functions in connection with the affairs of the Federation, a Province or a local authority to refrain from doing anything they are not permitted by law to do or to do anything they are required by law to do. Similarly declare that any action done or proceeding taken by the said persons has been done or taken with or lawful authority and is of no legal effect and may also direct that a person in custody within the territorial jurisdiction of the High Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner, etc. etc.

34. A proper analysis of the constitutional provisions, mentioned above, brings out that Fundamental Rights are so firmly entrenched in the Consti tution that even while the Proclamation of Emergency is in force ever citizen will, as provided in Article 4, enjoy the protection of law and be treated in accordance with law. In particular‑

35. "(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."

36. Under Article 9 he shall not be deprived of life or liberty save in accordance with law. Under Article 10 (i) & (2) when a person is arrested he shall not be detained in custody without being informed as soon as possible of the grounds of his arrest and will not be denied the right to be defended by a legal practitioner of his own choice. And "every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty‑four hours of such arrest". Any law or action, which is violative of these rights, will be void under Article 8 of the Constitution. Since Articles 91 and 10 are not included in Article 232 (1), referred to above, the State shall not frame any law even while the Proclamation of Emergency is in force in contravention of these rights. If such a law is enacted, any act done of proceeding undertaken under it, shall be struck down by a High Court under Article 199 as without lawful authority and of no legal effect. This result will follow even if the President has by an Order declared that the right toy move any Court for the enjoyment of these Fundamental Rights shall remain suspended while the Proclamation of Emergency is in force, for, as said earlier, Article 233 does not permit the State to nuke laws which are inconsistent with the Fundamental Rights other than the Rights specified in Articles 15, 16, 17, 18, 19, and 24. This power is independent of the power of the High Court to enforce Fundamental Rights conferred by Chapter I of Part II of the Constitution. Consequently if a person is taken into custody under a law which is violative of Articles 9 and 10, a High Court will under Article 199 (1) (b) issue a writ of habeas corpus and direct his release forthwith.

37. Our Constitution thus ensures that no person shall be deprived of his life and lirberty save in accordance with law and that the right conferred or every citizen by the Constitution to enjoy the protection of law is not affected in any manner by the Proclamation of Emergency issued by the President under Article 232. I am making mention of the Proclamation of Emergency` because it was in force on November 12, 1973, when the prisoner was arres ted from his house in Gulberg, Lahore. An Order was also made by the President on August 15, 1973, that the right to move any Court co, the enforcement of Fundamental Rights specified in Articles 10, 15, 16, 17, 18, 19, 23, 24, 25 and 27 of the Constitution shall remain suspended for the period during which the Proclamation is in force. As Article 9 is not specified in the Order issued by the President, the right to move a Hi‑ h Court under Article 199 and to move this Court under Article 184 (3) for as enforcement is not affected by the Presidential Order.

38. In the light of the constitutional rights and safeguards, referred to above we will now examine whether the arrest and custody of the prisoner on November 12, 1973, from his house in Gulberg, Lahore was not in accordance with law.

39. The prisoner was arrested in pursuance to warrants issued by the Additional District Magistrate, Kohlu, in Marri‑Bughti area, in connection with a case registered there against Ch. Mohammad Shafi and two others who were allegedly found in possession of arms and ammunition sent by the prisoner for supply to miscreants operating in that area. The question of his guilt or innocence is to be tried by a Council of Elders constituted under the Frontier Crimes Regulation of 1901 and not by a Court constituted under the Code of Criminal Procedure. The case of the prisoner who is a member of the National Assembly is that the latest case in which he has beer, arrested is a link in chic chain of criminal cases instituted against him by the State to bring political pressure on him. He was allowed bail by the High Court of Lahore in all those cases whereupon a device was adopted to spirit him away to the Tribal Area of Baluchistan with a view to deprive him of the right to approach a High Court for redress. On these allegations the arrest and detention of the prisoner are claimed to be mala fide.

40. As no inquiry has been held so far by the Council of Elders or the Addi tional District Magistrate, Kohlu, it cannot be postulated whether the accusations made against the prisoner are true or false. Similarly unless an inquiry is held it cannot be determined whether his arrest and detention are mala fide and not in honest implementation and execution of law.

41. It was contended on behalf of the appellant that when an application is made before the High Court under Article 199 of the Constitution complain ing that a person is being detained in custody within its territorial jurisdic tion, without lawful authority or in an unlawful manner, it is the duty of the Court to direct that the prisoner be brought before it so that it may satisfy itself whether the custody is with lawful authority and in a lawful manner or not and that if the State fails to satisfy the Court that the custody lawful the High Court shall direct his release forthwith. That appears to be the correct position, in law, but as will be indicated a little later we did not consider it appropriate to hold such an inquiry as identical grounds have been raised in the writ petition filed by Malik Ghulam Jilani to the High Court of Sind & Baluchistan and the learned Judges having decided that they have jurisdiction to issue a writ in relation to the prisoner. Thus they are now seized with this matter and it will amount to pre‑empting their jurisdiction if we were to enter upon an inquiry into allegations of mala fide.

42. Besides the ground of mala fide a two‑fold argument was raised in support of the claim that the arrest of the prisoner at Lahore and his removal to Kohlu are without lawful authority, Firstly that the arrest of the prisoner and his removal to Kohlu were in contravention of the governing provisions of the Code of Criminal Procedure; and secondly that the custody of the prisoner for trial by a Council of Elders at Kohlu under the Frontier Crimes Regulation will be violative of Article 4 and Article 9 of the Consti tution.

43. The first ground is substantiated by the record of the prisoner's arrest and removal to Kohlu. After the arrest was effected in pursuance to warrants issued under the signatures of the Additional District Magistrate, Kholu, the prisoner was straightaway taken to Quetta by train and from there removed to Kohlu. This process took three days to complete. Under Article 10(2) of the Constitution it was mandatory to produce him before a Magistrate Within a period of 24 hours was, therefore, per se illegal. The arrest was also in contravention of the provisions of sections 84 to 86 of the Code of Criminal Procedure inasmuch as the prisoner was not produced before the District Magistrate or District Superintendent of Police, Lahore, after the execution of the warrant of arrest and before his removal to Kohl a about 800 miles away from the place of arrest.

44. It was contended on behalf of the State that any illegality in the arrest of he prisoner had no effect on his subsequent detention in connection with the trial of a criminal case registered against him at Kohlu. Reliance was placed in the decision of this Court in M. S. K. Ibrat v. The Commander‑in‑Chief, Zoyal Pakistan Navy and others (1). Some other decided cases were also cited from the bar on this point. In my opinion, each one of these cases is distinguishable. In the case of M. S. K. Ibrat, the Court found that under section 50 of the Naval Discipline Act XXXIV of 1934 his arrest by the Javal authorities after his release by the High Court on a writ of habeas .pus was legal and that by virtue of section 12 of the Criminal Law Amendment) Act IX of 1948 the Court‑martial constituted by the Com mander‑in‑Chief, Royal Pakistan Navy, had the jurisdiction to try him for offences punishable under the aforesaid Naval Discipline Act. At page 272 of the report the learned Chief Justice observed

45. "The question whether the person of the appellant was delivered to the Naval authorities without any proper authority need not detain us long. What we have said above in rejecting the contention that the Special Judge was bound to proceed with the case is applicable mutatis mutandis to the contention that the Special Judge could not have delivered the person of the appellant to the Naval authorities. Any construction of the Criminal Law (Amend ment) Act, which would take away from the Special Judge the power to deliver the appellant to the Naval authorities for trial, would bring us directly in conflict with section 12 of that Act. Under section 50 of the Naval Discipline Act the appellant could be arrested by the Naval authorities while he was on bail, and we can discover nothing in the law against such arrest."

46. Saving found the custody and arrest of M. S. K. Ibrat as lawful, the learned 7hief Justice remarked

47. "But apart from this, the mere fact that a person has been arrested in an unauthorised manner does not, generally, affect the jurisdiction of the Tribunal before which he is brought for trial. In ex parte Susanna Scott the accused after committing a crime in England had abscond ed and was arrested in Belgium by a British Police Officer and brought back to England where he was arraigned before a Court. The illegality of his arrest having been set up by the defence as a bar to the trial, Lord Tenterden, C. J. rejected the plea, saying "The question therefore is this, whether if a person charged with a crime is found in this country it is the duty of the Court to take care that such a party shall be amenable to justice or whether we are to consider the circumstances under which he was brought here. I thought, I still continue to think, that we cannot inquire into them."

48. Nelson & Brand (Charge to the Grand Jury Second Edition, p. 118) in which Lord Cockburn, C. J. in his charge to the jury had said:

49. "Suppose a man to commit a crime in this country, say murder, and' that before he can be apprehended he escapes into some country with which we have not an Extradition Treaty, so that we could not get him delivered upto us by the authorities, and suppose that an English Police Officer were to pursue the mala factor, and finding him in some place where he could lay hands upon him and from which he could easily reach the sea, got him on board a ship and brought him to England, and the man were to be taken in the first instance before a Magistrate, the Magistrate could not refuse to commit him. If he were brought here for trial, it would not be a plea to the jurisdiction of the Court that he had escaped from justice and that by some illegal means he had been brought back. It would be said `Nay' you are here; you are charged with having committed a crime and you must stand your trial. We leave you to settle with the party who may have done an illegal act in bringing you into this position; settle that with him".

50. Reliance was also placed on the judgment of the Bombay High Court in Emperor v. Vinayak Damodar Savakar (I L R 35 Bom. 225), in which it was said: "the illegality of the arrest of the accused was pleaded as a bar to his trial, but was held to be irrelevant." The following passage in the judgment delivered by the Privy Council in Perbhu v. Emperor (A I R 1944 P C 73), was also quoted by the learned Chief Justice in support of the view that an illegality in the arrest of an accused ;person had no effect on the validity of the subsequent trial:

51. "The contention of the appellant was that his arrest, having been effected in Jind territory by a British Indian Officer, was illegal and that the illegality of his arrest vitiated the whole subsequent proceedings. Their Lordships reject this contention. They assume that the arrest was open to objection as an infringement of the sovereignty of Jind, although the Jind authorities, so far from resenting what had been done or regarding their rights as having been flouted, cooperated most readily with the British Indian Police in bringing the appellant to justice. There was no suggestion of anything like kidnapping. In their Lordship's view, the validity of the trial and conviction of the appellant was not affected by any irregularity in his arrest. When the appellant was presented for trial at Rohtak he had been validly surrendered to the Court there by the Jind authorities and so far as that Court was concerned, everything was regular and in order."

52. In Ex Parte Susanna Scott ((1829) 9 B & C 446), The Queen v. Nelson & Brand (Charge to the Grand Jury Second Edition, p. 118), Emperor w. Vinayak Damodar Savarkar, (I L R 35 Bom. 225) and Perbhu v. Emperor (AIR 1944 P C 73) the legality in the arrest of the accused person was claimed to have vitiated the trial. There can be no two opinions that such a result is not achieved on any principle of law. The adjudication of the guilt or innocence of an accused person has no nexus with the manner in which he is placed for trial before a Court of competent jurisdiction. Therefore, if the evidence placed before the Court brings home an offence to the accused person, he will be properly convicted notwithstanding any illegality in the mode by which he was brought to trial.

53. I may, however, point out that the decisions on which the learned Chief Justice relied in the case of S. M. K. Ibrat contain some remarks, which support the case of the petitioner before us. In Susanna Scott, Lord. Tenterden, C. J., concluded the judgment with the following remarks:

54. "If the act complained of were done against the law of a foreign country that country might have vindicated its own law. If it gave her a right of action, she may sue upon it. I am not, indeed, aware of any cases where the Government of a foreign country has interposed, in order that a person might be brought here on a charge of misdemeanor. In cases of felony I know it has been done ; I have granted a warrant for the apprehension of the party accused, and I do not know how, for this purpose, to distinguish between one class of crimes and another. It has been urged that the same principle will warrant an arrest in the case of a common assault. That certainly will follow, but there is little danger that a foreign country would allow such an arrest, and if the party making it is guilty of misconduct, the verdict of a jury will teach him not to repeat it."

55. The illegality in the arrest of the accused person was thus not condoned nor was his right to agitate against the arrest negatived by Lord Tenterden, C. J.

56. In Perbhu v. Emperor Lord Macmillan after citing the passage in The Queen v. Nelson & Brand which is reproduced in the case of M. S. K. Ibrat proceeded to observe:

57. "The appellant can derive no assistance from the case in 24 I A 137. In that case the arrest in Hyderabad State by a British Railway con stable of a British subject charged with bribery committed at Simla in British India was held to be illegal. The only question at issue was whether the arrest was lawful or not and Lord Chancellor Halsbury ire delivering the judgment of their Lordships expressly stated that they had not anything to do with consequences of the arrest being lawful or otherwise."

58. Actions in which the only question at issue is whether the arrest was lawful or otherwise ac in the present case are therefore covered by the dictum in The, Queen v. Nelson & Brand. When a person is taken into custody by the State, the prisoner has a right to move a High Court for his release on a writ of habeas corpus on the ground that his arrest and custody are not in accordance with law. And if it finds that the allegations made are true it is the duty of the Court to direct his release. As soon as the prisoner in this case was placed under arrest an application under Article 199 of the Constitu tion was moved in the High Court of Lahore. Notice in the application was given to the Advocate‑General who stated in Court that the prisoner was not detained within the territorial jurisdiction of the Court. The learned Judge thereupon dismissed the petition as incompetent. This certainly was an erroneous order to make.

59. On this point my learned brother Anwarul Haq, J. has cited the decision of the Court of Apeal in The King v. Secretary of State for Home Affairs (1923 C A 2 K B 361). In that case the applicant was arrested in London under the order of the Secretary, Home Affairs, and conveyed to Dublin, in the Irish Free State where he was interned when the application for writ of habeas corpus was made. It was held that notwithstanding that the Secretary of State had by surren dering the applicant to the Irish Free State Government lost the legal control, of his body the application was properly made against him. Bankes L. J. observed

60. "The last point for consideration is whether a writ ought to be issued directed to the Home Secretary having regard to the contention of the Attorney‑General, which was accepted by the Divisional Court, that as the applicant and been deported to and was interned in the Irish Free State the Home Secretary had not longer any power or control over him except in so far as the Government of that State had agreed that, in the event of the advisory committee deciding that he ought not to have been deported and interned, they could release him. From the statements made in the House of Commons to which w., have been referred it would appear that the Home Secretary was at the time he made those statements under the impression that he had not lost control over the persons who by his orders had been interned in the Irish Free State. In his affidavit he states that the Governor of the Mountjoy Prison is an official of the Free State Government, and is not subject either to his orders or to those of the British Government. This is no doubt an accurate statement in reference to the Governor of the prison, but it leaves the question in doubt how far, if at all, by arrangement with the Free State Government the body of the appli cant is under the control of the Home, Secretary. This question cannot, I think, be satisfactorily disposed of unless the rule is made absolute which will give the Home Secretary the opportunity, if he, desires to take advantage of it, of making the position clearer than at present it appears to be. This was the course taken in Barnardo v. Ford ((1892) A C 326), and is, in my opinion, the appropriate course to take in the present case. The order, therefore, is made absolute."

61. Scrutton L. J. dealing with this question remarked:

62. ". . . .the Attorney‑General contended before us that after an original order un-appealed against the Home Secretary had no power to release the prisoner, or to vary his terms of internment, in the sense that he might make an order, but could not enforce it. The Home Secretary certainly did not say this to the House of Commons; he may not have been thinking about the point, for if he bad thought of it, he would hardly have used the language he did. He now says on affidavit that the prisoner is in the custody or control of an Irish, official who is not subject to the orders or direction of the Home Secretary of the British Government. On this conflicting evidence, all proceeding from the Home Secretary himself, it appears to me quite doubtful whether or not, if an order is made for the production of the Body, the Home Secretary can or cannot produce that body. Under these circumstances I think the proper course to allow is that affirmed by the House of Lords in Barnardo v. Ford. There Dr. Barnardo alleged on oath that before the issue of the writ he had parted with the body to an independent person; that he did not know where that person or the body were, and had no means of communicating with them; the applicants disputed thus on various grounds, and the House of Lords armed the order of the Court of Appeal and ordered the writ to issue in order that a return might be made to it, on which return the truth might be ascertained. It may be that on hearing that in the opinion of this Court the order was issued without legal authority, the Home Secretary with the assistance of the Irish Free State Govern ment will produce the body, as it is hardly in the interests of either Government to act illegally. For these reasons I think that the rule should be made absolute for the writ to issue on the terms of the rule nisi."

63. Atkin L. J. laid emphasis on the fact that the applicant was at one time in the custody and control of the Home Secretary by an order which was held to be illegal. Following the case of Bunardo v. Ford, he found ample ground for the conclusion that the Court should order the writ to be addressed to the Home Secretary. In King v. Secretary of State for Home Affairs, the prisoner having been arrested within the territorial jurisdiction of the High Court of England had been conveyed to another country where he was interned when the application for habeas corpus was made. In the present case the difficulty faced by the English Judges did not arise. Tribal Area of Baluchistan is part of the Republic of Pakistan. A writ could, therefore, issue to the officer who had effected arrest in Lahore to produce the prisoner before the Court notwithstanding that he was at that time detained at Kohlu.

64. The contention raised on behalf of the State that the initial illegality in the arrest of the prisoner is no longer material as he is now being detained at Kohlu for trial on charges under sections 120. 121, 121‑A and 122, P. P. C. is thus without any force. We are not concerned at this stage with the legality of the trial of the prisoner which has not yet commenced but as in Yousaf uddin v. Queen Empress we are dealing with the legality of his arrest. If it is found to be illegal the prisoner will be discharged though he may again be taken into custody in accordance with law and placed for trial before a Court of competent jurisdiction.

65. Besides the procedural defect in the arrest of the prisoner a more formid able challege to the legality of his custody is raised on the ground that his proposed trial under section 11 of the Frontier Crimes Regulation is violative of Article 4 and Article 9 of the Constitution. It is contended on behalf of the prisoner that the reference made to the Council of Elders under section 11 of the Frontier Crimes Regulation for recording a finding whether he is guilty of the offences with which he is charged will deprive him of the protec tion of "law" which is secured to every citizen by Article 4 and that he may be deprived of life or liberty in violation of Article 9.

66. Section 11 of the Frontier Crimes Regulation provides as under:

67. "11. (1) Where, in the opinion of the Commissioner or Deputy Com missioner, it is inexpedient that the question of the guilt or innocence of any person or persons accused of any offence, or of any person or persons so accused, should be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898, the Deputy Commissioner may or if the Commissioner so directs, shall, by order m writing, refer the question to the decision of a Council of Elders, and require the Council to come to a finding on the question after such inquiry as may be necessary and after hearing the accused person. The members of the Council of Elders shall, in each case, be nominated and appointed by the Deputy Commissioner."

68. Dealing with this mode of trial Cornelius, J. as he then was observed in the case Samunder v. The Crown:--

69. "On a careful consideration of the statutory provisions, and the procedure actually followed in enquiries of this nature. I am satisfied that, if the ascertainment of the commission of an act, falling within one or more of the definitions of offences contained in the Penal Code, by the mode prescribed in section 11, Frontiner Crimes Regula tion can be regarded as a mode of justice at all, it is certainly not such a mode as is operated through the ordinary Courts of justice acting in accordance with the law of procedure and of evidence, but is rather to be assimilated to, and included among, the agencies of the general administration.

70. Trial by Jirga cannot be regarded as a summary trial, of the nature provided by the Criminal Procedure Code. As these cases themselves show, shortening of the duration of a case is not a necessary or even an intended result of reference to Jirga. The exact procedure to be followed in summary trials is laid down in the Criminal Procedure Code. Such trials must follow either the summons case procedure or the warrant case procedure even though the record is maintained in a form, different from and much briefer than that prescribed for ordinary trials. In the case of Jirgas, no proc.‑dune of any kind is laid down. The requirements are that there should be such enquiry "as may be necessary" and that the accused person should be heard. By the proviso to section 50 of the Regulation the Commissioner is debarred from interfering with a finding of fact recorded by a Jirga, which has been accepted by the Deputy Commissioner, "unless he is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice". In the absence of any rule, the ascertainment of material irregularity or defect except perhaps in cases where there has been no inquiry at all, or the accused opinion has not been heard at all, would vary according to the opinion of the parti cular Commissioner in relation to each particular case, and consequent ly there is no scope for imposing any specific measure of regularity upon the proceedings of Jirgas with the aid of section 50. Nor does the second provision furnish any scope for development of a rule in this respect. There being no regular procedure, such as is laid down in the Criminal Procedure Code for the preservation of strict impartiality and fairplay between the prosecutor and the accused the mere avoidance of a proceeding on the discovery of a procedure which is in itself likely "to occasion a miscarriage of justice" cannot be said to furnish adequate scope for enforcing the rule of equal opportunity to both sides.

71. The form of procedure being thus left to be determined arbitrarily by the Jirga, it seems clear enough that the intention of the Regulation also is that none of the recognised rules of evidence should be binding upon the Jirga. The main principles which underlie the law of evidence are exclusion of irrelevant matter and of hearsay, coupled with insistence upon the production of the best evidence, and upon a strict application of these rules depends the safe administration of justice. Administrative agencies are very frequently saved from the application of these rules by statute or otherwise, and that is certainly the case with respect to Jirgas. In these very cases, the Jirga has declared that it held "open and secret enquiries", which suggests investigations of a nature entirely different from those, which are permissible in a Court of law. Thus, in such enquiries, one would expect to receive a good deal of hearsay evidence, and statements based on prejudice or pre‑conception and even mere gossip may be introduced. In such circumstances, it is impossible to preserve the rule of the best evidence.

72. It is likely that some, and it may be considerable portion, of the evidence which satisfied the Jirga was received ex parte, and thus without cross examination. The statement that "open and secret enquiries" were made at Lahore clearly suggests the possibility that such questioning was carried on in the absence of the accused persons. Moreover, information gathered by putting questions in open assembly can never have the quality of judicial evidence, nor can information obtained by secret investigation be so regarded.

73. The language employed in the Order of Reference which has been cited above, may also have led the Jirga to take "official notice" of certain matters which were in fact justifiable issues, by reason of the statements having been made on high administrative authorities. For an adminis trative agency, the taking of "official notice" may be perfectly in order, but is highly prejudicial to the dispensation of justice.

74. The process of decision provided under the Regulation is also foreign to justice as administered by the Courts. The hearing is before a Jirga but the power of decision is vested in the Deputy Commissioner, who does not see or hear the accused or any of the witnesses, and is not empowered by law to do so, even if he should so desire. In these circumstances, the Jirga is a merely advisory body, and since the Deputy Commissioner does not have the case presented before him through counsel, it is obvious that his decision is wholly vicarious. Decisions of this nature are common enough on the administrative side, but they are obnoxious to all recognised modern principles governing the dispensation of justice In such circumstances, it is impossible to preserve public confidence in the justness of the decision. That may be of secondary importance to an administrative agency, but it is of permanent importance to a Court of justice. The mere fact that a revision is permitted obviously does not remedy the situation in this respect. The present cases provide clear proof that the Commissioner did not feel bound to examine the case of each accused person before him on its merits, for he has disposed of a great number of these cases by means of a standard order of a compo site nature, designed to apply to a number of different contingencies, but containing no reference to any accused person by name, much less to the particular offence of which he is found guilty and the evidence upon which that finding was based.

75. A feature common to administrative agencies is that they are concerned more largely with the vindication of public interest than with the enforcement of private rights. That feature appears very clearly throughout the proceedings actually taken in the present cases, which, in this respect, cannot be said to have been conducted otherwise that in compliance with the express provisions and the underlying inten tions of the Frontier Crimes Regulation."

76. When the case of Samundar was heard there were no constitutional safe guards, such as, are contained in Article 4 and Article 9 of the Constitution. The question, therefore, did not arise before their Lordships whether the conviction of the accused in that case was in accordance with "law" or not. The situation, however, changed when for the first time the 1956 Constitu tion conferred on the citizens Fundamental Rights. In Malik Muhammad Usman v. The State, a Full Bench of the High Court of West Pakistan of which I was a member declared that references under sections 8 and 11 of the Frontier Crimes Regulation and convictions based on them are void. Ortcheson J. who delivered the judgment of the Court concluded thus:

21. Having considered the authorities cited before us, 1 am respectfully of the view that sections 8 and 11 of the Regulation providing for reference of proceedings to a Jirga offend against Fundamental Right No. 15, inasmuch as the Deputy Commissioner and the Commissioner are given an uncontrolled discretion to select particular cases and even particular accused in the same case for the discriminatory procedure, such discretion being moreover not governed by any settled principles. They are also repugnant to Fundamental Right No.1, it being now settled that the Jirga procedure cannot be described as "law" in any recognised sense of the term. All other sections dependent on sections 8 and 11 automatically fall with them".

77. The term "slaw" used in Article 4 and Article 9 is not defined in the Constitution, but this Court has, in more than one case, given its meaning arid content. Article 4 of the present Constitution is similar in terms to Article 2 of the 1962 Constitution. It provided:

78. "2.‑(1) To enjoy the protection of the law, and to be treated in accor dance with law, and only 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

(e) no person shall be compelled to do that which the law does not require him to do".

79. The term "law" was not defined in the 1962 Constitution also.

80. In the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri Hamoodur Rehman, J. (as he then was) in the construing the pro visions of Article 98 (2) (b) which were identical to Article 199 (1) (b) (i) concluded thus:

81. "The words `in an unlawful manner' in sub‑clause (b) of Article 98 (2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalien able right of every citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining as to who and in what circumstances a 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 colour able is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also 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 for an action as in accordance with law and would, therefore have to be struck down as being action taken in an unlawful manner."

82. In the light of the decisions in Samundar v. The Crown, Malik Muhammad Usman v. The State, and Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri, it can be safely stated that the trial of the prisoner, who neither resides in the tribal areas of Baluchistan nor has allegedly committed any offence there, under section 11 of the Frontier Crimes Regulation will not be, in accordance with `law' in the sense in which this term has been used in Article 4 and Article 9 of the Constitution. This finding will certainly reflect on the legality of his custody, but it does not preclude the State from placing him before a Magistrate for trial in accordance with the provisions of the Code of Criminal Procedure.

83. Lastly it remains to deal with the plea raised on behalf of the State that clause (7) of Article 247 bars this Court from exercising any jurisdiction in relation to the prisoner who was detained in a Tribal Area when this applica tion was made. Having given careful consideration to the arguments raised by the learned Attorney‑General and the Advocates‑General, Baluchistan and Punjab, I am unable to accept the plea that the bar contained in clause (7) of Article 247 of the Constitution is attracted. As seen the prisoner was arrested in Lahore on November 12, 1973, any person could thereupon approach this Court with an application under Article 184 (3) for a writ in accordance with the provisions of Article 199 so as to satisfy the Court that the custody of the prisoner was in accordance with law or otherwise. The place of arrest being outside a Tribal Area there was jurisdiction in this Court to entertain the application. Under Article 187 this Court has power to issue such direc tions, orders or decrees as may be necessary for doing complete justice in any case or matter and any such direction, order or decree shall be enforceable throughout Pakistan. Under Article 190 all executive and judicial authorities. throughout Pakistan shall act in aid of the Supreme Court. Assuming that this Court finds that the arrest and custody of the prisoner at Kohlu are not in accordance with law and directs his release, it cannot be postulated that the Additional District Magistrate, Kohlu, or the officer incharge of the Jail in which the prisoner was under detention (he has since been released under the order of this Court) will fail to obey the direction given by this Court. Indeed, it is their constitutional duty to implement the directions given or orders pass ed by this Court.

84. What then is the effect of conveying the prisoner to a Tribal Area. Does, he thereby forfeit the Fundamental Rights so firmly vested by the Constitu tion in every citizen? As observed during the hearing of these matters, the Fundamental Rights are not so unreal or fragile that the ingenuity of a police officer and a fast moving conveyance can defeat them and render this Court helpless to give redress though it may be satisfied that the arrest and the cus tody of the prisoner are not in accordance with law. The essence of the issue in my opinion is that if a person is arrested in violation of any provision of law at a place where he has a right to move a High Court or this Court for his release under Article 199 or this Court under Article 184 as the case may be that right will not be defeated by his removal to a Tribal Area. My reason for reaching this conclusion is that the inquiry, which the Court will undertake, will, in point of time, be in relation to arrest and custody at a place which is not a Tribal Area. His detention in a Tribal Area when an application under Article 184 or Article 199 is made would be relevant only if it could be shown that a writ issued by a High Court or this Court will not be obeyed by the authority who is holding the prisoner in custody. As brought out above, such a situation is not visualized by the Constitution. The removal of the prisoner from Lahore to Kohlu and his detention there have, therefore, no effect whatever on the exercise of jurisdiction by this Court in relation to the prisoner. The case of The King v. Secretary of State for Home Affairs‑Ex Parte O'Brien cited earlier fully supports this view.

85. It was contended on behalf of the State that if a person commits an offence in a Tribal Area he renders himself liable to be treated in accordance with the law, which prevails in that part of the country. There is force in the conten tion, but there are more than one answers to it. Firstly, that the Criminal Procedure Code is as much applicable to Tribal Areas as to the other parts of the country. It will, therefore, be apt that such a person be tried in a Court constituted under the Code and not by a Council of Elders under the Frontier Crimes Regulation. Secondly, that if a person voluntarily goes to a Tribal Area and commits an offence there he is, on a general principle of law, liable to be tried and punished according to the law, custom or usage which prevails there. I would not, however, express any final opinion on this point as the prisoner in this case is said to have committed the offences with which he is charged outside the Tribal Area and was taken there involuntarily by the agents of the State.

86. Notwithstanding the conclusions I have reached that: (i) the Court has jurisdiction to direct that the prisoner be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; (ii) that his arrest at Lahore on November 12, 1973 was not in accordance with law, and (iii) that his trial at Kohlu under section 11 of the Frontier Crimes Regulation will not be in accordance with `law'. It is not necessary to issue a writ for his release as we have already allowed him bail. The State may yet choose to try him in a Court constituted under the Code of Criminal Procedure and such a course will not be open to any objec tion based on the provisions of Article 4 or Article 9 of the Constitution. If the plea that the arrest of the prisoner is mala fide and with a view to put political pressure on him was substantiated, the Court would have set him at liberty but this would require an inquiry into the correctness of the allegations made in the petition. But we did not adopt this course as an identical petition filed by Malik Ghulam Jilani for release of the prisoner under Article 199 of the Constitution, is pending in the Sind‑Baluchistan High Court, in which allegations of mala fide are made. We leave it, therefore, to the High Court Io inquire into the allegations that the arrest of the prisoner is mala fide and with a view to put political pressure on him. In the meantime, as directed, by my learned brother Anwarul Haq J., the prisoner will remain on bail grant ed by this Court.

87. In Civil Review Petition No. 37 of 1973 filed by the Government of Pakis tan through Secretary, Tribal Areas, I do not wish to add to the reasons I gave in the dissenting judgment given by me in Hafiz Umer Guts case. I may at the same time point out that during the hearing of the petition I asked the learned Advocate‑General of Baluchistan whether any fresh direction was given by the President either under Article 223(1) of the 1962 Constitution or Article 247(3) of the present Constitution extending the Pakistan Penal Code, the Code of Criminal Procedure or the; Frontier Crimes Regulation to the Tribal Areas. His answer was in the negative. In that case the, prisoner is in accordance with majority decision of the Court in Hafiz Umer Gul's case would not be guilty of any offence nor liable to arrest and detention under the Code of Criminal Procedure indeed the warrant of arrest issued by the Additional District Magistrate under the Code of Criminal Procedure for the arrest of the prisoner in pursuance to which he was taken into custody will be hid to be without lawful authority. The Advocate‑General who opposed the review petition was on the horns of a dilemma and gave no answer to this question. I reiterate the view expressed by me in Hafiz Umer Gul's case that President's Order 11 of 1961 restored the writ jurisdiction of the High. Court of West Pakistan in relation to Tribal Areas and that no fresh direction by the President under Article 223 (1) was necessary for its operation. Under Article 225 (1) of the 1962 Constitution, the President's Order continued to remain in force like all other existing laws which had been from time to time extended to the Tribal Areas. A contrary view would lead to an anomalous result. The President has given no fresh directions either under the 1962 Constitution or the 1973 Constitution extending the operations of certain laws to the Tribal Areas. If the decision in Umer Gut's case remains in the field no laws including the Frontier t‑rimes Regulation will be held to be in force in the Tribal Areas of Baluchistan and the North‑West Frontier Province. To avoid this vacuum, it is necessary to review that decision as prayed for by the State. As public interest is involved in the case, I will condone the delay in the filing of the review petition.

88. SALAHUDDIN AHMED, J. ‑Criminal Petition No. 61‑P of 1973 and Criminal Appeal No. 2 of 1974 arise out of the same cause of action, namely, the arrest and detention of Ch. Zahoor Elahee, a R4ember of the National Assembly of Pakistan, and claimed to be a prominent leader of the Opposition. Civil Review Petition No. 37 of 1973 seeks to review the decision of this Court in the case of Hafiz Umer Gut v. Government of Pakistan (P L D 1973 S C 544), All these three matters have been heard together, and arc now being disposed of under one order.

89. The criminal petition is under Article 184 (3) of the Constitution of the Islamic Republic of Pakistan, (1973) (hereinafter called the Constitution) and is directed against the arrest of the petitioner's brother, Ch. Zahoor Elahee, from the tatter's house in Gulberg, Lahore, in the afternoon of the 12th of Novem ber, 1973, under a warrant purported to have been issued by respondent No. 4 the Assistant Commissioner and the Additional District Magistrate, Kohlu, District Sibi, within Quetta Division in the Province of Baluchistan. The warrant is alleged to have been issued in a case entitled State v. Muhammad Shafi, etc. registered under sections 120‑B, 121, 121‑A and 122 of the Pakistan Penal Code. The petitioner has said that he reliably learnt that the aforesaid warrant had not been issued by respondent No. 4, who was in Kohlu in Baluchistan, and that it was fabricated in Lahore vide Annexure `C' to the petition. It is stated that the police officials of the Province of the Punjab (whose names are given in Annexure 'B' to the petition) when they first came to arrest the prisoner, did not have with them any warrant, and that it was only when the prisoner insisted that he would not permit himself to be taken into custody except under a warrant, that the Superintendent of Police left the place and returned after about an hour with the said warrant. The petitioner was told that the prisoner was being taken to the Police Station Civil Lines, Lahore. It transpired later that they took the prisoner straight to Multan. It is asserted that the warrant was neither endorsed for transfer of the prisoner out of Lahore nor were the requirements of law as prescribed in the Code of Criminal Procedure complied with. The police officials arrived with the prisoner at Multan at about 11 p.m. and then the latter was taken by another police escort to Rohri, and arrived there on the morning of the 13th of Novem ber, 1973. The same day in the evening the prisoner was put on a Quetta bound train, and off‑boarded at a place 2 or 3 stations before Quetta, where he was transferred to the custody of Baluchistan Police consisting of several police officers including the Superintendent, a Deputy Superintendent and an Inspector of Police. The Baluchistan Police was accompanied by a large number of armed personnel of the Federal Security Force. The prisoner was then taken to Quetta and finally to Kohlu, which is a "Provincially Adminis tered Tribal Area" under Article 247 of the Constitution. It has been stated that Kohlu was at the time rendered inaccessible to the general public because of military operations that were being conducted in the adjoining areas.

90. The petitioner has given the background of the arrest of prisoner Ch. Zahoor Elahee, and said that one Ch. Muhammad Shafi, who like the prisoner was also opposed to the party in power, had been called on the 8th of Novem ber, 1973 at 9 p.m. by one Muhammad Aslam, claiming to be an Officer on Special Duty to the then Governor of the Punjab, to his residence on a false pretext. Accordingly, Ch. Muhammad Shafi alongwith his chauffeur, and one Ch. Hamid Azam Buttar drove in a borrowed car to the residence of the said Muhammad Aslam. However, as soon as Ch. Muhammad Shafi and party came out of the said house they were stopped and forcibly taken away by Sardar Abdul Wakil Khan, D. I. G. (Special Branch), Punjab, Mirza Jalil Ahmed, D. S. P. and several other police officers to the office of the Crimes Branch, wherefrom Ch. Muhammad Shaft. was alone taken to Lahore Airport, and flown on the following morning to Quetta in a small aeroplane. The aero plane landed at the Quetta Military Airport. It is alleged that the police officers, who accompanied Ch. Muhammad Shafi had taken alongwith them bags of arms and ammunition in the same plane, and they, too, were un loaded at the Quetta Military Airport. Thereafter, Ch. Muhammad Shafi, and the said arms and ammunition were taken to Kohlu (vide Annexures 'E' and `F' to the petition), and a case was registered against Ch. Muhammad Shafi and two others under sections 120‑3, 121, 121‑A and 122 of the Pakistan Penal Code on the allegations that they were acting as agents of prisoner Ch. Zahoor Elahee, and were arrested in Kohlu, and found to be in possession of arms and ammunition. The arrest of the prisoner was attributed to this case (vide Annexures `G' and `G/1') Ch. Muhammad Shafi was later handed over to the Assistant Commissioner, Kohlu.

91. The petitioner said he had received a communication from the prisoner that his life was in imminent and extreme danger in view of the armed distur bances then prevailing in the Marri‑Bugti area. It is alleged that the authority has been anxious to put a stop to the political opposition of the prisoner, and that with a view to achieve this object several cases have been filed not only against the prisoner but also against his relatives and associates, instances of which are given in Annexure `H' to the petition. It is further alleged that having failed uptil then to hold the prisoner in check and detention, this time he was removed with undue haste to a Trial Area under the belief that he would be out of reach of the jurisdiction of any superior Court, and of any possible relief from such Court. The petitioner has asserted that the arrest is illegal and mala figs, and is clearly in contravention of the Fundamental Right as contained in Article 9 of the Constitution, which guarantees that no person shall be deprived of his liberty except in accordance with law, which according to the petitioner means except in the honest implementation and a execution of the law. It is submitted that having regard to the background of the arrest and the manner in which the prisoner was arrested and removed to Kohlu with undue haste and without having complied with requirements of law and the fact that the agency of law and order has been used as an instrument of oppression by misuse of powers, a question of public importance of much significance has prima facie arisen with reference to the enforcement of the Fundamental Right, and, therefore, this Court has jurisdiction to entertain the petition under Article 184 (33 of the Constitution. The petitioner has, accordingly, prayed that the prisoner be brought before this Court to enable it to satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.

92. In the meantime soon after the arrest of the prisoner on the 12th of November, 1973, an application under sections 498 and 561‑A of the Code of Criminal Procedure was filed before the Lahore High Curt praying for the release of the prisoner on bail. In the application it was mentioned that the prisoner had been kept in Lahore Fort within the jurisdiction of the Lahore High Court. On the 14th of November, 1973, the High Court dismissed the application as infructuous on the short ground that it was stated in the written statement filed by the learned Advocate‑General of the Punjab that the prisoner had been taken to "some place in the province of Baluchistan" and that he was not within the jurisdiction of the Lahore High Court. A certified copy of the order of the Lahore High Court dated the 14th of November, 1973 and a copy of the said application has been put on record.

93. On the 16th of November, 1973, Malik Ghulam Jilani, Secretary‑General, Tehrike‑Istiqlal, a close friend of the prisoner, moved Constitution Petition No. 1143 of 1973 under Article 199 of the Constitution before the High Court of Sind & Baluchistan against the Assistant Commissioner, Kohlu, and the Province of Baluchistan and, inter alia, asked for the immediate release of Ch. Zahoor Elahi and for a declaration that the arrest of the prisoner and the entire proceedings relating to him were illegal. As an interim measure, it was prayed that either the prisoner be released on bail or he be removed to the Central Prison, Karachi to enable him to get adequate legal and medical assistance as he had been seriously ill. Criminal Appeal No. 2 of 1974 has arisen out of this Constitutional Petition.

94. In our order dated the 17th of December, 1973, we had observed that the questions raised in the petition were of general public importance and we, accordingly, directed that the petition be registered and notice be issued to the respondents as well as to the Attorney‑General for Pakistan and Advocates General of the Punjab, Sind, Baluchistan & N.‑W. F. P.

95. Criminal Appeal No. 2 of 1974 .is by the Province of Baluchistan, and the Assistant Commissioner, Kohlu, against respondent Malik Ghulam Jilani, and it arises out of the petition for special leave to appeal from the judgment and order of the High Court of Sind & Baluchistan at Karachi dated the 17th of December, 1973, passed in Constitution Petition No. 1143 of 1973. The petition for leave was converted into an appeal on the prayer of Mr. Manzoor Qadir, learned counsel appearing on behalf of the petitioners.

96. The case against the prisoner in the said appeal is that he has been sup plying anus and ammunition to the mischief‑makers in the Tribal Area of Baluchistan and has committed offences under sections 120, 121,121‑A and 122 of the Pakistan Penal Code. The name of the prisoner is alleged to have been disclosed to some of his co‑accused by co‑occused Muhammad Shafi. There, however, appears on the record a statement of the said Muhammad Shafi characterising the allegations against him and prisoner Ch. Zahoor Elahee as absolute lies.

97. The Deputy Commissioner has referred the case of the prisoner along with three other co‑accused including Muhammad Shad to the Council of Elders under section 11 of the Frontier Crimes Regulation 1901, for trial on the ostensible ground that the arms and ammunition were seized in Kohlu. Some of the important features of the Frontier Crimes Regulation are that the Council of Elders hold the inquiry not under the provisions of the Code of Criminal Procedure and not on the basis of evidence as contemplated under the Evidence Act. There is no appeal from any decision given, decree, or sentence passed, order made, or act done, under any of the provisions of the said Regulation.

98. The High Court of Sind & Baluchistan by au interim order dated the 17th of December, 1973 held that tine Constitutional jurisdiction of the High Court under Article 98 of the 1962 Constitution had been restored to the High Court of West Pakistan in relation to the Tribal Areas of Quetta Division under Act II of 1964, and this jurisdiction having been preserved, first, by virtue of proviso to clause (7) of Article 261 of the Interim Constitution, and later by proviso to clause (7) of Article 247 of the Constitution of the Islamic Republic of Pakistan (1973), the High Court possessed the jurisdiction in rela tion to the Tribal Areas of Quetta Division.

99. As regards another question whether the Frontier Crimes Regulation 1901, was still in force in the Quetta Division, the High Court by the said order reserved the question for decision after hearing the Advocate‑General of Baluchistan, and notice was, accordingly, directed to be issued to him for a date in office. This question being under consideration of the High Court, and not necessary for the disposal of Petition No. 61‑P of 1973 and Criminal Appeal No. 2 of 1974, does not seem to me to call for consideration at this stage.

100. The appellants without having waited for the final decision of Constitu tion Petition No. 1143 approached this Court for leave to appeal from the interim order of the High Court of Sind & Baluchistan holding that it had jurisdiction under the Constitution in the Tribal Areas of Quetta Division. We are told by Mr. Manzur Qadir, learned counsel appearing on behalf of the petitioner that the High Court had till then passed no order for the production of the person of the prisoner as the learned Advocate‑General of Baluchistan had expressed his inability to appear before the High Court till the 31st of December 1973. The learned Advocate‑General of Baluchistan appeared before this Court, and stated that he had instructions to apply for leave appeal from the aforesaid interim order of the High Court, and submitted t to as long as that order was in the field the Baluchistan Government would hat object to producing Ch. Zahoor Elahee before the said High Court not Manzoor Qadir, however, was apprehensive of the safety of the person of Ch. Zahoor Elahee, and submitted that although he did not ask for bail f requested that this Court should pass orders for the removal of the prisoner, to a place where his personal safety was not in jeopardy. We, according adjourned Criminal Petition No. 61‑P of 1973 and directed that it be heard alongwith the proposed petition of the Province of Baluchistan for special leave to appeal. We further ordered that in the meantime, Ch. Zahoor Elahee be removed to Karachi and confined in the Karachi Central Prison and not removed from there until further orders of the Court. This order of removal was passed without prejudice to the contentions of the parties on the question of jurisdiction of the superior Courts. . Ch. Zahoor Elahee has since been removed to the Central Prison, Karachi, and lodged there.

101. Civil Review Petition No. 37 of 1973 is barred by 208 days. There, however, a plausible explanation for the delay. It is said that it was only after the judgment had appeared in the law report that the attention of the Government was attracted to the particular aspect of the Judgment. Having regard to the obvious error that has crept in the impugned judgment ands which is likely to have a grave repercussion on the administration of justice,]' would condone the delay. The petition has been filed by the Government o Pakistan praying that the judgment of this Court in the case of Hafiz Umer Gul v. Government of Pakistan, reported in P L D 1973 S C 544, be reviewed on the following grounds:-

(1) Act II of 1964, whereby the jurisdiction of the Supreme Court and the High Court was restored in relation to the Tribal Areas of the Quetta Division, was not considered in the case.

(2) That President Order No. 11 of 1961 having been specifically made for application to the Tribal Areas no further direction vas necessary from the President under Article 223 (1) of the 1962 Constitution for its application to the Tribal Areas, and that such direction was necessary only in cases of legislation made after the coming into force of the said Constitution.

(3) That under section 7 of the Establishment of West Pakistan Act 1955, the jurisdiction of the High Court of West Pakistan including the writ jurisdiction extended to the entire Province of West Pakistan including the Tribal Areas with effect from the 14th of October, 1955. Therefore, it was not correct to say that President Order No. 11 of 1961 for the first time conferred upon the High Court of best Pakistan writ jurisdiction in respect of the Tribal Areas.

102. It has been submitted that apart from the Constitutional jurisdiction of the High Court, the High Courts and the Supreme Court lead always exercised, and even now exercise certain jurisdiction under various laws, e.g., the Codes of Criminal and Civil Procedure, either by way of appeal, revision or reference, and that if the aforesaid Article 223 (1) be interpreted in the manner it has been done in Hafiz Umar Gul's case, the application of those laws in the Tribal Areas will also require a direction' by the President. As admittedly there is no such direction in respect of the application of such laws in Tribal Areas, it is submitted, that startling and grave result will fellow, if the interpretation is maintained.

103. The principal question that calls for consideration in Criminal Petition No. 61‑p of 1973 is whether in the facts and circumstances of the case this No, 61 car, and should assume jurisdiction under Article 184 (3) of the Constitutions. Article 184 (3) is in these terms:

104. Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article "

105. The Fundamental Right alleged to have been contravened is Right No 9 which says that no person shall be deprived of life or liberty save in accordance With law.

106. Upon the facts of the case, however, Fundamental Right as contained in Article 1012) of the Constitution also appears to have been infringed. This Right is as follows:

107. "Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty‑four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate "

108. I may state here at once, firstly, that the President Order dated the 15th of August, 1973, issued under Article 233 of the Constitution makes no mention of Article 9, and, secondly, that the operation of Fundamental Right as contained in Article 10 itself is not suspended although the right to move any Court including the Supreme Court for the enforcement of the Right is suspended for the period during which the Proclamation of Emergency issued under Article 232 of the Constitution remains in force. It may also; be mentioned that the latter part of the President's Order which says that "all proceedings pending in any Court which are for the enforcement, or involve the determination of any question as to the enforcement of any of the said Rights, shall remain suspended for the period during which the said Proclamation is to force", does not apply to the present case as it was not Pending on the date of the Order.

109. It will be of advantage to state here certain features of the Constitution of the Islamic Republic of Pakistan and my line of thinking with reference to the various questions of Constitutional law that arise for consideration. Pakistan is based at the Rule of law which is embodied in Article 4 of the Constitutions The same position is reflected in some of the Fundamental Rights enshrined in the Constitution. The Constitution is framed to be followed. It creates no right and imposes no duty in vain. Article 5 of the Constitution? specifically provides that obedience to the Constitution and law is the basic obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. The commandment is clear and ambiguous, and nobody can get away from or be relieved of this obligation Under any circumstance. According to the accepted rules of inter pretation a Court should avoid a construction which renders any Constitutional Provision meaningless or inoperative. Pakistan consists of three organs of the state the Executive Legislature and the Judiciary. Each one of them is bound by the oath not only to preserve, protect and defend the Constitution but also to discharge its duties and perform its functions, honestly, to the 134 of its ability, faithfully in accordance with the Constitution and the law. For the Executive the oath is taken by the President; tile Prime Minister and each Federal Minister or Minister of State; and the Chief Minister or Minister of Province. For the Legislature it is taken by the Speaker of National Assembly the Chairman of the Senate, and each Member of the two Houses, namely the National Assembly and the Senate; and the Speaker and Member of a Provincial Assembly. For the Judiciary it is taken by each and every member of the Superior Judiciary. Each one of the organs is thus responsible for the due discharge of its responsibilities towards and under the Constitution, `Ubi jus ibi remedium' is another principle of interpretation that applies to the Constitution. Assuming that no remedy meets the eye, it becomes the duty of the Legislature to provide for the remedy and make it apparent, Remedy or no remedy, the `will' of the Constitution reigns supreme, and no body can be permitted to flout the `will'. So far as a superior Court i; concerned whenever and wherever it comes across anything done in violation of the provisions of the Constitution, it must declare such thing as void, Such a declaration cannot be in vain, for it is hardly in the interests of any Government to countenance illegality. Any omission to comply with the Constitution can also in suitable cases be remedied by a High Court under Article 199 of the Constitution. It must be borne in mind that Article 190 of the Constitution provides that all executive and judicial authorities through out Pakistan shall act in aid of the Supreme Court. If the ship of State is to follow its chartered course of progress and prosperity in a favourable atmosphere and avoid shoals it is necessary that its charter must be truly and clearly understood and faithfully followed.

110. The observations I have just made should be considered in the light of the following principles governing the interpretation of a written Constitution as laid down by American jurists in American Jurisprudence 2d Volume 16 (Constitutional Law):

111. (Para 50 page 223)

112. (Para 56 page 227)

113. (Para 94 page 280)

114. (Foot Note 15 page 280)

115. (Para 95 page 280)

116. (Para 96 page 281)

117. (Para 97 page 282)

118. 2 nd and 3 rd para

119. (Foot Notes 6 and 9 at page 282)

120. (Para 98 page 283)

121. (Para 99 page 284)

122. (Para 100 page 284)

123. "No public policy of a State can be allowed to override the positive guarantees of the Federal Constitution."

124. "A written constitution is not only the direct and basic expression of the sovereign will, it is also the absolute rule of action and decision for all departments and officers of government with respect to all matters covered by it, and must control as it is written until it is changed by the authority which established it. No function of Government can be discharged in disregard of or in opposition to the fundamental law."

125. "Self‑executing provisions.‑A constitutional provision is self‑executing if no legislation is necessary to give effect to it, and if there is nothing to be done by the Legislature to put it in operation."

126. "A provision is self‑executing when it can be given effect without the aid of legislation and there is nothing to indicate that legislation is contemplated to render it operative, and when there is a manifest intention that it should go Into immediate effect, and no ancillary legislation is necessary to the enjoyment of aright given, or the enforcement of a duty imposed."

127. "It is to be observed that even in the case of a constitutional provision which is self‑executing the legislature may enact legislation to facilitate the exercise of the powers directly granted by the Constitution; legislation may be enacted to facilitate the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of the right. Stated differently, the rule is that a self executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution and further the exercise of constitutional right and make it more available."

128. "Modern state constitutions have been generally drafted upon a different principle and have often become, in effect, extensive codes of laws intended to operate directly upon the people in a' manner similar to that of statutory enactments. Accordingly, the presumptions now is that all provisions of the constitution are self‑executing. As in the case of the question whether a constitutional provision is mandatory or directory, the Courts may be influenced in interpreting such provisions as self executing rather than as requiring legislation by the knowledge that if not treated as self executing, the legislature would have the power to ignore and practically nullify the directions of the fundamental law."

129. "An additional test is expressed in the general rule that where there is no ambiguity and the purpose of the provision would be frustrated unless given immediate effect, it will be treated as self‑executing.

130. The question whether a constitutional provision is or is not self‑executing is ultimately one of intention."

131. "Constitutional provisions should never be construed as dependent for their efficacy and operation upon legislative will. (Swift & Co. v. Newport News, 105 V‑a 108, 52 SE 821).

132. If a constitutional provision is complete in itself, it executes itself. State ex. rel. Miller v. Toberman, 360 Mo 1101, 232 SW 2d 904).

133. "The test is, does the provision indicate that it was intended as a present enactment, complete in itself or does it contemplate subsequent legislation to carry it into effect?"

134. "The mere fact that Legislation may supplement and add to, or prescribe a penalty for the violation of, a self. executing provision of a constitution does not render such a provision ineffective in the absence of such legislation."

135. "The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self -executing. The maxim `ubi jus ibi remedium' (where there is a right there is a remedy) is as old as the law itself. Accordingly, it has been decided that if a state constitution declares that a liability shall exist in certain specified circums tances, an action may be maintained to enforce such liability, notwithstanding the non‑existence of any legislation upon subject. This is based upon the principle that if there is no statute especially adapted to enforce a constitutional, right it enforces itself by its own inherent potency."

136. "Prohibitory provisions in a constitution are unusually self‑executing to the extent that anything done in violation of them is void."

137. To revert to Criminal Petition No. 61‑P of 1973 the respondents have not filed any affidavit in opposition disputing the averments made in the petition. It appears, however, from the records of Criminal Appeal No, 2 of 1974 that the respondent in Constitution Petition No. 1143 of 1973 before the High Court of Sind & Baluchistan had put in a rejoinder.

138. I now proceed to consider whether in the facts and circumstances of this case the conditions precedent mentioned in Article 184 (3) of the Constitution exist to enable this Court to exercise its jurisdiction thereunder. Admittedly Ch. Zahoor Elahee was arrested from his house in Lahore on the 12th of November, 1973, at 3 p.m. It has not been denied that, at first, the police party that went to arrest him neither disclosed the cause of his arrest nor produced any warrant, and that it was only after the prisoner had insisted on the production of some order that the warrant in question was produced after about an hour. There is also no denial about this in the rejoinder of the respondent in Constitution Petition No. 1143 of 1973, Under section 80 of the Code of Criminal Procedure the Police Officer executing the warrant is duty bound to notify the substance thereof to the person to be arrested, and, if so required, must show him the warrant If, indeed, there was no existence of a warrant in law, and yet the prisoner was arrested, there was a contravention of Article 9 of the Constitution, Besides, this was a gross abuse of the process of a Court.

139. The petitioner on the basis of a letter dated the 17th of November, 1973, said to have been written by prisoner Ch. Zahoor Elahee complained that the warrant had, in fact, not been issued by respondent No. 4, Assistant Commissioner and Additional District Magistrate, Kohlu, Baluchistan, but had been fabricated in Lahore. This categorical assertion has gone unchallenged. On reference to the warrant we find that there are indications that the allegations are not altogether baseless. The examination of the warrant reveals that it was addressed by the Assistant Commissioner and Additional District Magistrate, Kohlu, to the District Magistrate, Lahore. The warrant bears the seal of the Assistant Commissioner and Additional District Magistrate, Marri, and the rubber stamp also gives the same description but it has been over‑written; `A. C. & A. D. M., Kohlu'. On the reverse of the warrant there is something written about releasing the prisoner on bail of prescribed in section 76 of the Code of Criminal Procedure, and it is signed by the Assistant Commissioner and Additional District Magistrate, Bug,'. This instruction; however, appears to have been cancelled by putting a cross but is left unsigned and un-initialled. On the reverse tie following order purported to have been made by the District Magistrate, Lahore, appears:

140. "P1. Execute immediately."

141. There is, however, no order of removal as contemplated in section 86 of the Code. Prima facie, therefore, the warrant looks suspicious, and requires inquiry.

142. The petitioner has further stated that the prisoner, although told that he gas being taken to the Police Station Civil Lines, Lahore, was never taken here instead he was taken straight to Multan. Under section 85 of the Code of Criminal Procedure the prisoner was first required to be taken before the District Magistrate, Lahore, and under section 86 of the Code, the Magistrate's direction was required for removal of the arrested person in custody to the ('ours that issued the warrant. It is of interest to reproduce here section 86‑A of the Code added to the Code by the Law Reforms Ordi nance (Ordinance XII) of 1972:

143. "86‑A. Procedure for removal in custody to Tribal Area.‑‑. Where a person arrested under section 85 is to be removed in custody to any place in the Tribal Areas, he shall be produced before a Judicial Magistrate within the local limits of whose jurisdiction the arrest was made, and such Magistrate in directing the removal shall hear the case in the same manner and have the same jurisdiction and powers, as nearly as may be, including the power to order the production of evidence, as if tie person arrested were charged with an offence committed within the jurisdiction of such Judicial Magistrate; and such Magistrate shall direct the removal of the arrested person in custody if he is satisfied that the evidence produced before him raises a strong or probable presumption that the person arrested committed the offence mentioned in the warrant."

144. Under the amended section 86 of the Code the Sessions Judge has been given a discretion to release an accused on bail in a non‑bailable offence subject to section 497 of the Code. Though these particular provisions have not been enforced yet, the intention of the Legislature on these points is quite manifest, and show the trend of thinking of the Government themselves concerning the arrest of a person and his removal to a Tribal Area. I may state here that the learned Advocate‑General, Punjab, has conceded that the arrest was illegal as the requirements of section 86 of the Code of Criminal Procedure were not complied with.

145. The prisoner does not appear to have been produced before a Magistrate within a period of twenty‑four hours of arrest as required under Article 10 (2) of the Constitution, and, consequently there has been an infringement of this Fundamental Right which no Court can fail to take notice of. In this connection it may be recalled that the Fundamental Right as contained in Article 10 of the Constitution has not been suspended and it is, therefore, fully operative and the authorities are duty bound to observe it and the Court is duty bound to take notice of its infringement. It is true that under the aforesaid President's Order the right to move any Court for its enforce ment has been temporarily suspended. But this does not suspend the operation of the Right itself, nor does it, in any way, relieve the person or authority concerned of the duty to comply with the provisions of Article 10(2) of the Constitution. It is particularly so in the case of an agency charged with the duty of maintaining law and order.

146. The petitioner further stated that at the relevant time Kohlu had been rendered inaccessible to the general public because of military operations that were being conducted in the adjoining areas. Similar statements were made in paragraph 10 of Constitution Petition No. 1143, and the respondent in the said rejoinder admitted that the position in respect of Kohlu and the difficulties to reach there was generally correct. In these circumstances the petitioner is likely to meet with difficulties in obtaining proper medical and legal advice.

147. In paragraph 10 of the petition it has been stated that the aforesaid Ch. Muhammad Shafi was induced to make a false statement that he was responsible for supplying arms and ammunition to Marri Tribesmen, and that those arms and ammunition were being supplied by the prisoner. This statement has also not been challenged and requires inquiry.

148. The petitioner has further alleged that the case against the prisoner is the latest link in a chain of cases instituted against the prisoner for political reasons and that in addition to putting pressure upon him, cases have been instituted against his relatives and associates including his wife, his elder brother, Ch. Manzoor Elahee (the petitioner herein), the prisoner's son, Ch, Shujaat Hussain, prisoner's nephew and son‑in‑law Ch. Parvez Elahee prisoner s another nephew, Ch. Tajjammal Hussain, and Ch. Muhammad Salim and Ch. Muhammad Shafi, a brother‑in‑law and a cousin of the prisoner, prisoner's Private Secretary Seth Muhammad Ashraf and some other relations and friends (vide Annexure `H' to the petition). This statement, too has not been challenged. If these assertions are found true they may have a bearing on the question of mala fide regarding the arrest and detention of the prisoner.

149. The High Court at Lahore, however, declined to exercise any jurisdiction in the aforesaid petition filed under the Code of Criminal Procedure on behalf of the prisoner on the ground that he was not then within the territorial limits of its jurisdiction. This action of the Lahore High Court has raised a question of general public importance with reference to the enforcement of Fundamental Right as contained in Article 9 of the Constitution as to whether where a person residing within the territorial limits of a High Court's jurisdiction has been dealt with illegally, the High Court is unable to grant him relief under Article 199 of the Constitution merely because the authorities have succeeded by means of the modern quick methods of transport in removing the aggrieved person from the territorial limits of the High Court.

150. The High Court of Sind & Baluchistan had till then neither decided? about its jurisdiction nor ordered the production of the prisoner before the Court. The sands of time were running out and the life of the prisoner continued to be in danger as apprehended by the petitioner. An urgent action was, therefore, called for, and this could only be taken by this Court as there was a dispute about the jurisdiction of a High Court particularly of the High Courts of Lahore, and of Sind & Baluchistan to entertain t' a petitioner's petition for relief. This, too, was, therefore, a question of public importance to the people at large and was referable to the Fundamental Right in question.

151. In my opinion, if the facts and circumstances mentioned above are true, several other questions of general public importance with reference to the enforcement of the Fundamental Rights do arise for consideration. It seems that there are certain misconceptions about the availability of the Fundamental Rights in the Tribal Areas and the jurisdiction of the superior Court therein. The scope of the jurisdiction of a High Court under Article 199 of the Constitution also required immediate determination in the interest; of the Ruler as well as the Ruled. Another question of importance to the general public that required consideration was whether in a case where there were clear allegations of illegal arrest in and removal from the jurisdiction of High Court, the Court could and should have exercised its jurisdiction under article 199 of the Constitution even though the application before it was under sections 498 and 561‑A of the Code of Criminal Procedure. Yet another question of similar nature for consideration was what was the effect of a Fundamental Right which was not suspended but the aright to approach the Court for its enforcement was suspended.

152. In the facts and circumstances of the case, I think the prisoner was entitled to approach the Lahore High Court, within whose territory he lived and was arrested, and ask the Court to see whether he was arrested in accordance with law and whether there was any justification for his arrest. For it is not enough that a warrant may on the face of it appear to be legal; the High Court will still be entitled under Article 199 of the Constitution to inquire whether the person has been arrested in accordance with law and is in custody in a lawful manner and that these have been done bona fide.

153. Article 199 of the Constitution gives a variety of powers to the High Court and there is nothing in the Constitution to suggest that if the High Court is for one reason or another unable to exercise its powers under one clause it cannot exercise its powers under another. Even if the High Court considered itself unable to exercise its powers under clause (c) of Article 199 (1) of the Constitution, it could, in my opinion, exercise its powers under clauses (a) or (b) thereof Article 199 of the Constitution so far as is relevant for our present purpose is as follows:‑

154. "199.‑(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law‑

(a) On the application of any aggrieved party, make an order‑

(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, to refrain from doing anything he is not permitted by law to do, or to do anything he' is required by law to do ; or

(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a province or a local authority has been done or taken without lawful authority and is of no legal effect ; or

(b) on the application of any person, make an order‑

(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner ; or

(ii) ..

(c) on the application of any aggrieved person, make an order giving such directions to any person or authority including any government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.

(2) Subject to a Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 11 shall not be abridged."

155. It is, thus, evident that the powers of a High Court to pass the necessary direction or declaration as contemplated in Article 199 (1) (a) are not fettered by any bar as to the place where the aggrieved person may for the time being be present. A direction or declaration given by a High Court under Article 199 (1) (a) (i) and (ii) respectively is fully operative, and it is not in the interest of any Government to ignore it. I am supported in my view by the case of Rex v. Home Secretary (129 L T R 419). In the case under report a Rule nisi had bee x issued upon the Home Secretary to show cause why he should not be ordered to produce the body of the detenue detained in the Irish Free State which had acquired the status of an independent State wherein the Home Secretary no longer exercised any jurisdiction. The rule was made absolute by the unanimous opinion of the Court. One of the Judges observed thus:‑

156. "It may be that on hearing that in the opinion of the Court the order was issued without legal authority, the Home Secretary with the assistance of the Irish Free State Government will produce the body, as it is hardly in the interests of either Government to act illegally."

157. The other two Judges proceeded on the basis of certain statements made by the Home Secretary in the House of Commons that he had not lost control over the persons detained in the Irish Free State under his orders.

158. In the present case if the authorities concerned bad acted in the manner required by the Constitution and Law, and as they were bound to act, the Lahore High Court could have easily acted under Article 199 (1) (b) or (c), for the prisoner would still then be within the territorial jurisdiction of the Court, and the person or authority etc. as contemplated thereunder would also be within the territorial jurisdiction of the High Court. In either case the High Court was not powerless, and it could under the Constitution grant relief to the aggrieved person if he succeeded in showing that he had not been dealt with in accordance with the Constitution and law. If the High Court possesses the requisite powers no technicality should stand in its way to grant relief particu larly where the liberty of a person is involved. Viewed in this light, even though an application under sections 498 and 561‑A of the Code of Criminal Procedure was not the appropriate procedure, the Lahore High Court could and should have asked the person concerned to apply under Article 199 of the Constitution, if it thought it could grant him relief thereunder.

159. In my opinion, the powers given to a High Court under Article 199 of the Constitution is wide enough to cover not only a case of infringement of Fundamental Right as contained in Part It of the Constitution, but also to enforce the inalienable right of a citizen as mentioned under Article 4 of the Constitution which runs thus:‑

160. "4.‑(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."

161. It has been contended in this context that there is no remedy provided by the Constitution to enforce the rights and obligations mentioned in Article 4. The contention is misconceived. In the first place, the injunctions contained in Article 4(2) are not only mandatory but they are also clothed in prohibitory language which indicate that the provisions are self‑executing and no legisla tion is necessary to give effect to them. The rules of interpretation of a written Constitution as reproduced above support this view. Apart from the question of any machinery to enforce the right or obligation, as I have said earlier, nobody is relieved of the obligation to comply with them. In the second place, I am unable to conceive that a right or obligation so clearly and solemnly given or put can be without a content, meaning or purpose. Unless, therefore, on an examination of the Constitution I am led to the inevitable conclusion that the Courts are powerless to enforce the inalienable right or the obligation mentioned in Article 4, I am of the opinion that the Courts are bound to give the Article a meaning and a purpose. I have, however, already noticed that Article 199 of the Constitution gives indeed wide powers to a High Court to act for the enforcement of the rights and obligations mentioned in Article 4 of the Constitution.

162. Article 4 may be compared `with the due process of law in the American Constitution. The case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri P L D 1969 S C 14, supports this view. In the case under report Article 2 of the 1962 Constitution which is corresponding to Article 4 of the Constitution was considered and the Court observed as follows:‑

163. "The words `in an unlawful manner' in sub‑clause (b) of Article 98 (2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is inalienable right of every citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining as to how and in what circumstances a detention would be 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 is also 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.

164. It would seem, therefore, that by these words, at any rate, so far as the deprivation of the liberty of a citizen was concerned, the Constitution‑makers intended that this most cherished right should not be taken away in an arbitrary manner and hence by sub‑clause (b) of clause (2) of Article 98 they advisedly left it to the High Courts to review the actions of the detaining authority, untrammelled by the formalities or technicalities of either section 491 of the Criminal Procedure Code or the old Prerogative writ of habeas corpus not only with regard to the vires of the law or the officer concerned but also enjoined upon them to satisfy themselves that the detention is not in any manner contrary to law. The scope of the enquiry is, therefore, not in any way fettered by the procedure of a writ of habeas corpus or the rules laid down under the various Habeas Corpus Acts. The Court must nevertheless, in decid ing this question necessarily have regard to the language of the statute under which the power is exercised, the purpose for which the detention is sought to be made and the circumstances in which it came to be ordered, The content of the power vested by the Constitution in the Court cannot be limited or taken away by a sub‑constitutional legisla tion but the reference to the statute and the other factors mentioned above is rather for determining its true nature, scope and legality."

165. Again, in the case of Jamal Shah v. Election Commission PLD 1966 S C 1 it was observed by Kaikaus, J. (as he then was) thus: ‑

166. "It embodied an important charter. It prevents the Government from taking any action in this country for which there is no legal sanction, and it at the same time debars the Legislature from creating an authority whose actions are not subject to law. The Legislature cannot, in the face of Article 2, enact that whatever action a particular person may take shall be immune from challenge. All persons exercising authority in Pakistan must do so only in accordance with law."

167. The controversy between the parties, however, does not end here. With reference to Article 247 (7) of the Constitution, it has been strenuously contended on behalf of the Governments of Pakistan and the Provinces that inasmuch as the prisoner has already been removed to the Tribal Area of Kohlu, and is now being tried under section 11 of the Frontier Crimes Regulation, 1901, neither the Supreme Court nor a High Court has any jurisdiction in the matter.

168. Under the Constitution the Fundamental Rights as contained in Part 11, Chapter 1, apply to the whole of Pakistan there is nothing in the Constitution to indicate that they are inapplicable in any part of Pakistan including the Tribal Areas as defined in Article 246. All that Article 247 (7) provides is:

169. "Neither the Supreme Court nor a High Court shall exercise any jurisdic tion under the Constitution in relation to a Tribal Area, unless Parliament by law otherwise provides:

170. 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."

171. Evidently Article 247 (7) merely speaks about the jurisdiction of the Supreme Court and a High Court under the Constitution and has nothing to do with the applicability to and availability of the Fundamental Rights in Pakistan. That being so, in accordance with the rules of construction no function of Government can be discharged in disregard of or in opposition to the fundamental law.

172. It is profitable at this stage to compare with the situation that existed under the 1956 Constitution. The relevant parts of Article 22, and Articles 170 and 178 of the 1956 Constitution read as follows:

173. "22.‑(1) The right to move the Supreme Court by appropriate pro ceedings for the enforcement of the rights conferred by this part is guaranteed.

(2) The Supreme Court shall have power to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part.

(3) The right guaranteed by this Article shall not be suspended except as otherwise provided by the Constitution.

(4) The provisions of this Article shall have no application in relation to Special Areas."

174. "170. Notwithstanding anything in Article 22, each High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appro priate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by Part II and for any other purpose."

175. "178. Notwithstanding anything in the Constitution, neither the Supreme Court nor a High Court shall, unless Parliament by law otherwise provides, exercise any jurisdiction under the Constitution in relation to the Special Areas."

176. It is, thus, evident that "the right to move the Supreme Court" as well as the power of the Supreme Court to issue the directions, orders or writs mentioned in clause (2) of Article 22 were made inapplicable in relation to Special Areas. There is no such provision in the Constitution. Article 22 (2) did not affect the powers of a High Court under Article 170 to issue writs etc. for the enforcement of any of the rights conferred by Part II i.e. Fundamental Rights, and for any other purpose. Article 178, however, excluded certain jurisdiction of the Supreme Court and a High Court' under .the Constitution in relation to the Special Areas. As to what is meant by the phrase `in relation to', I shall hereafter deal with.

177. Now Article 8 (5) of the Constitution provides that the rights conferred by Chapter 1 (Fundamental Rights) shall not be suspended except as "ex pressly" provided by the Constitution. Alongwith this may be considered Article 199 (2) which provides that subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged. Both these Articles have reference to Article 233 whereunder certain Fundamental Rights may be suspended or the right to approach the Court for their enforcement may be suspended. Unless, therefore, there is a clear and specific direction to the contrary, the Fundamental Rights do apply to the whole of Pakistan including the Tribal Areas. In my opinion there is no such direction to the contrary.

178. Part X of the Constitution deals with emergency provisions, and Article 233 therein provides as follows:

179. "233.‑(1) Nothing contained in Articles 15, 16, 17, 18, 19 and 24 shall, while a Proclamation of Emergency is in force, restrict the power of' the State as defined in Article 7 to make any law or to take any executive action which it would, but for the provisions in the said Articles, be competent to make or to take, but any law so made shall, to the extent of the incompetency cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is, revoked or has ceased to be in force.

(2) While a Proclamation of Emergency is in force, the President may, by order, declare that the right to move any Court, for the enforce ment of such of the Fundamental Rights conferred by Chapter 1 of Part II as may be specified in the order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of any of the Rights so specified, shall remain suspended for the period during which the Proclamation is in force, and any such order may be made in respect of the whole: or any part of Pakistan.

(3) Every order made under this Article shall, as soon as may be, be laid before a joint sitting for approval and the provisions of clauses (7) and (8) of Article 232 shall apply to such an order as they apply to a Proclamation of Emergency."

180. Articles 15, 16, 17, 18, 19 and 24 mentioned in Article 233 (1) of the: Constitution deal respectively with Fundamental Rights relating to freedom of movement; freedom of assembly, freedom of association; freedom of trade, business or profession; freedom of speech, expression and press and protection of property rights.

181. The aforesaid President's Order dated the 15th of August 1973, issued under sub‑Article (2) of Article 233 suspended the right of a person to move any Court for the enforcement of Fundamental Rights Nos. 10, 15, 16, 17, 1&, 19, 23, 24, 25 and 27. Fundamental Right as contained in Article 9 is not included in the said order. A person aggrieved by the contravention of Fundamental Right as contained in Article 9 is, therefore, entitled to approach a High Court, and in certain circumstances the Supreme Court, for then enforcement of the right.

182. Before I proceed to consider whether Article 247 (7) of the Constitution places any bar upon the jurisdiction of the Supreme Court or a High Court: in respect of its jurisdiction to enforce the Fundamental Rights in a Tribal Area, it is of advantage to mention certain relevant principles governing the interpretation of a Constitutional document.

183. In the case of Rochin v. California 342 U S 165, it has been stated that Constitutions are intended to preserve practical and substantial rights and not merely to enunciate theories of Government.

184. The fundamental principle of Constitutional construction is that effect must be given to the intent of the framers of the organic law and all the people adopting it (vide Whitman 176 U S 559).

185. Wherever the purpose of the framers of the Constitution is clearly expressed, it will be followed by the Courts Keller v. State (Tex Crim) 87 S W 669. (See also 16 American Jurisprudence 2d Constitutional Law, Paragraph 64).

186. (Para. 66

187. Page. 243)

188. "It is an established canon of constitutional construction that no one provision of the constitution is to be separated from all, the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument."

189. The rule is well established that no Court is authorised so to construe any clause of the Constitution as to defeat its obvious ends where another construction equally accordant with the words and sense thereof will enforce and protect it (Prigg v. Pennsylvania 16 Pet U S 539, 10 L Ed. 1060).

190. (Para. 73

191. Pages 252‑253)

192. "Another important conon of construction of similar nature which is frequently applied to constitutions is that the limitations of a power furnish a strong argument in favour of the existence of that power.

193. A constitutional exception of any particular case presupposes that all those which are not included in such exception are embraced within the terms of a general grant or prohibition. The rule is likewise well established that where no exception is made in terms, none will be made by mere implication of construction. Where a restriction is not general, but is stated in connection with a specific situation, its application will note be carried to other situations."

194. The Constitution should be construed so as to give it effective operation and suppress the mischief of which it is aimed (Jarrolt v. Moberly 103 U S 580 L Ed. 492).

195. An elementary rule of construction is that if possible effect should be given to every part and every word of a Constitution and that unless there is some clear reason to the contrary, no portion of the fundamental law should be treated as superfluous (Wright v. United States 302 U S 583, 82 L Ed. 439).

196. A Court should avoid a construction which renders by constitutional provision meaningless or inoperative, and must lean in favour of a construc tion which will render every word operative, rather than one which may make some words idle and nugatory (Vide United States v. Butler 297 U S 1, 80 L Ed. 477, Marbury v. Madison 1 Cranch U S 137, 2 L Ed. 60 and Brushaber v. Union P. R. Co. 240 U S 1, 60 L Ed. 493. (See also 16 American Jurisprudence 2d Paragraph 67)).

197. Professor Benard Schwartz of the New York University School of Law says that the Constitution is not to be reduced into "mere maxims of political morality". In his opinion it should be given an interpretation that will make it a real living instrument of Government.

198. As far as possible each provision of the Constitution should be construed so as to harmonize with all the others. (Vol. 16 Corpus Juris Secundum).

199. In the case of State v. Ziaur Rehman P L D 1973 S C 49, it has been observed that the' Constitution should be read as a whole giving every part thereof meaning consistent with the other provision of the Constitution.

200. Bearing those principles in mind I proceed to construe Article 247 (7) of the Constitution. Prima facie the main clause appears to be a bar on the exercise of the jurisdiction of the Supreme Court or a High Court in a Tribal Area unless the Parliament otherwise provides. It is necessary to reproduce here the relevant provisions of the rest of Article 247 to help understand the true import of Clause (7) thereof:‑

201. "247.‑(l) Subject to the Constitution, the executive authority of the Federation shall extend to the Federally Administered Tribal Areas, and the executive authority of a Province shall extend to the Provincially Administered Tribal Areas therein.

(2) The President may, from time to time, give such directions to the Governor of a Province relating to the whole or any part of a Tribal Area within the Province as he may deem necessary, and the Governor shall, in the exercise of his functions under this Article, comply with such directions.

(3) No act of Parliament shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of Parliament or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction.

(4) Notwithstanding anything contained in the Constitution, the President may, with respect to any matter within the legislative competence of Parliament, and the Governor of a Province, with the prior approval of the President, may, with respect to any matter with the legislative competence of the Provincial Assembly make regulations for the peace and good government of a Provincially Administered Tribal Area or any part thereof, situated in the Province."

202. It may be noticed that the regulations made by the President or the Governor as the case may be under Article 247 (4) and (5) of the Constitution must be with respect to any matter within the Legislative competence of Parlia ment or the Provincial Assembly as the case may be. The competence of either Legislature does not extend to Fundamental Rights guaranteed by the Constitution, and which are matters within the exclusive domain of the Constitution. No sub‑Constitutional statute can in any way whittle down or affect the Fundamental Rights. And this is so notwithstanding the non obstante phrase in Article 247 (4) and (5) of the Constitution.

203. Only recently in Civil Appeal No. 6‑P of 1970, decided on the 4th of December 1973, this Court, while considering the interpretation of the words "in relation to a Tribal Area", had observed that the matter had to be looked into from the point of view of its substance and not its mere form. In the case of Dosso v. State P L D 1957 Quetta 9,C. J. Rahman of the West Pakistan High Court (as he then was) observed that "in relation to a Special Area" is not comprehensive enough to include reference to residents of Special Area ‑who committed a crime outside those areas in Pakistan. The learned Judge also proceeded to observe that the High Court was not barred from expressing an opinion upon the legality or otherwise of orders passed by the relevant authorities in Special Areas (=Tribal Area) in all conceivable cases. Furthermore that the ouster jurisdiction of the High Court in all cases should not be lightly assumed. P L D 1957 Quetta 9 was relied on in the Full Bench case of Pakistan Industrial and Mining Syndicate v. Pakistan Industries Ltd. P L D 1961 Kar. 437 which was decided before the passing of President's Order No. 11 of 1961. In the case under report the case was instituted in Quetta although it arose out of the dispute regarding land situated in the Special Area. The order impugned before the High Court was not against the order of any authority in the Special Area. It was an order of a Court functioning in Quetta and subordinate to the High Court of West Pakistan. The Full Bench, inter alia, held that the jurisdiction of the High Court was not taken away in respect of such a case under Article 178 of the 1956 Constitution (corres ponding to Article 247 of the Constitution), and that "in relation to the Special Areas " had not such a wide import as the case before the High Court. It was observed that the condition precedent to the exercise of jurisdiction by the High Court was whether any part of the cause of action arose within the jurisdiction of the High Court. (The underlining is mine.) In the case of Abdul Sam! Khan v. Subedar Major Hamesh Gul P L D 1958 Lah. 1039, there was a civil dispute between Hamesh Gul, a resident of Khyber Agency, and Sutlej Cotton Mills (the latter is in the Punjab). A warrant of arre3t was issued by the Political Agent Khyber Agency, Peshawar, and executed in Montgomery (now Sahiwal). Hamesh Gul moved the High Court for a writ of certiorari on the ground that he was not guilty and that the warrant of arrest was intended to harass him. The High Court held that a person within its jurisdiction could demand that he be arrested only in accordance with law and that the jurisdiction of the High Court was not barred in such matters. Kaikaus J., as he then was, observed as follows:‑

204. "It is not necessary at all for the High Court to have jurisdiction over the Courts in a Special Area in order that it may prevent a person residing in an area within its jurisdiction from being illegally arrested in execution of a warrant purporting to have been issued by some authority in that Special Area. Nor does this Article (Article 178 of the 1956 Constitution) prevent this Court from declaring that an order passed by some authority purported to be a Court exercising jurisdiction in a Special Area is void."

205. In the case of Sar Khan v. State P L D 1967 S C 149, it was held that in proceedings under section 11 of the Frontier Crimes Regulation merely because the offence was committed in a Tribal Area was not enough to exclude the High Court's jurisdiction under Article 98 of the 1962 Constitution to examine the propriety and legality of anything done within its territories.

206. In the case of Jamil Ahmad v. State P L D 1969 S C 344, it has been observed that if the cause of action arose within the jurisdiction of the High Court, e.g., if arrested there, the High Court could have jurisdiction.

207. It is not disputed that the Supreme Court or a High Court has always exercised certain civil and criminal jurisdiction under the Constitution in the Tribal Areas. For example, the Supreme Court under Article 185 hears appeals from any judgment, decree, final order or sentence of a High Court passed on appeal, revision, etc. under the Codes of Criminal or Civil Procedure. Appeal or revision to a High Court under these two Codes are available in Tribal Areas in cases to which F. C. R. has not been applied. As may have been already noticed, a High Court can under Article 194 of the Constitution pass orders for the enforcement of Fundamental Rights throughout its territorial jurisdiction. Under Article 204, the Supreme Court or a High Court has power to punish for contempt of Court any person who scandalizes the Court etc., no matter where he lives. Can it be said that this power is denied to the Supreme Court or a High Court under Article 247 (7) in the case of a person residing in a Tribal Area and committing contempt while residing there. To countenance such an interpretation is to gravely affect the foundation of the administration of justice, and afford a safe refuge for the contemner. This will be clearly against the intent and purpose of Article 204. Again, under Article 212 (3) an appeal from the order etc. of an Administrative Court or Tribunal lies to the Supreme Court in certain circumstances. Can it be said that if a person in the service of Pakistan resides in a Tribal Area the jurisdiction of the Supreme Court is excluded under Article 247 (7) of the Constitution. To hold that it is so excluded is against the obvious purpose and intent of Article 212 (3).

208. For the reasons stated above I hold that the words "in relation to al Tribal Area " under Article 247 (7) of the present Constitution are not comprehensive enough to include the contravention of a Fundamental Rights in respect of a person residing outside a Tribal Area, arrested outside the, Area and not subject to the Tribal usage or customs. Consistent with the aforesaid principles governing the interpretation of a Constitutional instru ment, the words "in relation to the Tribal Area" in my opinion have reference to matters covered by the provisions of clauses (1) to (6) of Article 247 that precede clause (7) thereof. For it can never be the intention of the frame of the Constitution to give so clearly and solemnly the Fundamental Right with one hand and take them away with the other. If it was the intention of the framers of the Constitution to deny the people of the Tribal Areas or persons residing therein the benefits of the Fundamental Rights nothing was easier or simpler than to say that they did not apply to or in the Tribal Areas. It is of importance to note here the significant omission of the non obstante phrase in Article 261 (7) of the Interim Constitution and Article 247(7) of the Constitution. Thus, the provisions of the Constitution regarding the Fundamental Rights and the jurisdiction of the Supreme Court and High Court to enforce them are not controlled by Article 247 (7). I would, indeed, be anomalous and absurd that while the arm of an authority in a Tribal Area is long enough to reach the person residing outside the area, the Supreme Court or a High Court is powerless to come to the rescue of a person whose Fundamental Right has been flagrantly violate within its own territorial jurisdiction. According to the accepted principle of interpretation the ouster of such jurisdiction should not be lightly assumed, and therefore unless there is a clear and definite provision of the Constitu tion that bars the jurisdiction, it must be held that the jurisdiction exists. The mere fact that the person concerned has been hastily and surreptitiously removed to a Tribal Area will not, in my opinion, rob the Supreme Court or the High Court of its jurisdiction to grant him relief, and thus, allowed to defeat the clear intent of the Constitution.

209. There is another aspect of the matter particularly in regard to the jurisdiction of a High Court. "The Tribal Areas (Restoration of Jurisdiction) Act, 1964 (Act 11 of 1964), published in the Gazette of Pakistan Extraordi nary on the 10th April 1964, was passed by the National Assembly in pursuance of Article 223 (5) of the 1962 Constitution which is similar to Article 247 (7) of the Constitution. The Act is an `existing law' with' the meaning of Article 268 of the Constitution, and it is continued in operation thereunder with the necessary adaptations until altered, repealed oil amended by the appropriate Legislature. It has not been brought to our notice that the said Act has been altered, repealed or amended by the Parliament, which is the appropriate Legislature in this case. Act II of 1964 restored to the Supreme Court and the High Court the same jurisdiction as was exerciseable by them in relation to the Tribal Areas of Quetta Division before the commencement of the Constitution (First Amendment) Act 1963 (Act I of 1964). The position before the commencement of Act I of 1964 was that under President's Order No. 11 of 1961 Special Areas (Restoration of Jurisdiction) Order the Supreme Court was empowered to exercise the same jurisdiction as would have been exercisable in relation to the Special Areas (the Tribal Areas) by the Federal Court of Pakistan on the 14th day of October 1955 and by the Supreme Court on the 23rd day of March 1956, as if sub‑clause (i) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act 1955, and Article 178 of the 1956 Constitution had not been enacted. Similarly the jurisdiction of the High Court of West Pakistan in relation to the Special Areas was restored to the position which existed on the 14th of October 1955, as if the id provisions of the Establishment of West Pakistan (Amendment) Act, 1 55 and Article 178 of the 1956 Constitution had not been enacted. On the 14th of October 1955, however the Fundamental Rights did not exist a on the 23rd of March 1956, under Article 22 of the 1956 Constitution the, right to move the Supreme Court for the enforcement of the Fundamental Rights was made inapplicable in relation to the Special Areas. It seems therefore, that President's Order No. 11 of 1961, in spite of its reference to Article 178 of the 1956 Constitution did not change the position with the result that the right to move the Supreme Court for the enforcement of Art Rights in relation to the Special Areas was not available the before the commencement of Act I of 1964.

210. The position of the High Court was, however, otherwise. The impedi ments as contained in the Establishment of West Pakistan (Amendment) Act, 1965, and in Article 178 of the 1956 Constitution having been removed the totality of a High Court's jurisdiction as it existed on the 14th of October 1955, was restored. Under section 7 of the West Pakistan Establish ment t, 1955 as it stood prior to its amendment in November 1955, the High Court of West Pakistan and the Judges thereof were empowered to exercise jurisdiction in relation to the whole of the Province of West Pakistan', which included the Tribal Areas, and the powers and authority exercisable by the High Court in Lahore, and the Judges thereof immediately before the 14th of October 1955. Immediately before the 14th of October 1955, the Lahore High Court exercised its jurisdiction including the power to issue writs throughout the then Province of Punjab. It may be mentioned here that the case of Umer Gul P L D1973 S C 544 does not bring out this aspect clearly and it is, therefore, being reviewed by this Court to make the clarification.

211. It is profitable at this stage to compare the language of Article 247 of ‑the present Constitution with similar provisions of the Constitution that preceded the present Constitution.

212. Article 178 of the 1956 Constitution was as follows:‑

213. "Notwithstanding anything in the Constitution, neither the Supreme Court nor a High Court shall, unless Parliament by law otherwise provides, exercise any jurisdiction under the Constitution in relation: to the Special Areas."

214. Article 223 (5) of 1962 Constitution was as follows:‑

215. "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."

216. Article 261 (7) of the Interim Constitution of 1972 was in these terms:-

217. "Neither the Supreme Court nor a High Court shall exercise any juris diction under this Constitution in relation to a Tribal Area, unless the Federal Legislature by law otherwise provides:

218. 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."

219. Article 247 (7) of the Constitution of the Islamic Republic of Pakistan 1973 reads as follows:‑

220. "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:

221. 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."

222. The comparison brings out one feature prominently, and this is the absence of the words "Notwithstanding anything in the Constitution". The deliberate omission of these words by the Legislature in the Interim Constitution as well as the present Constitution is clearly indicative of the fact that the framers of the Constitution have not placed as complete a bar as the authors of the 1956 and 1962 Constitutions did on the jurisdiction of the Supreme Court or a High Court.

223. On behalf of the Government of Pakistan, and the several Provinces it has been contended that even though the prisoner was originally arrested and sent to Kohlu in contravention of the Constitution and the law, he is now put on trial under the Frontier Crimes Regulation, and, therefore, neither his detention nor his trial can be called illegal.

224. Frontier Crimes Regulation is a relic of the days of imperialism, and has hardly ever been subjected to any detailed examination by any Legislature in Pakistan. The historical and environmental reasons for the existence of the Frontier Crimes Regulation are now almost matters of academic interest. Whatever might have been the historical and constitutional position of the Tribal Areas, and the reasons for treating them not at par with the rest of Indo‑Pakistan Sub‑Continent before the establishment of Pakistan, since the creation of Pakistan, the Tribal Areas have become parts of Pakistan, and it is only if and when the Constitution otherwise provides, the Funda mental Rights do apply to them as they do to the rest of Pakistan. In the case of Zewar Khan P L D 1969 S C 485, it has been held that the Tribal Areas have become parts of Pakistan since the 15th of August 1947, and the Tribal Areas of North‑West Frontier have become parts of the Province of' West Pakistan from 1955 and that all laws which applied to those territories before the 15th of August 1947, were continued in force until altered or amended. At the present moment ail that we are concerned with is the fact that the Frontier Crimes Regulation is an "existing law" under Article 268 of the Constitution and is continued in force subject to the Constitution, and until altered, repealed or amended by the appropriate Legislature. The Regulation is, therefore, subject to Article 8 in Chapter 1, Part II of the Constitution, which reads as follows:-

225. "(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contraventions, be void.

226. ..

227. ..

(5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution."

228. Frontier Crimes Regulation was an "existing law" under Article 225 of the 1962 Constitution and Article 280 of the Interim Constitution. It continues to be an "existing law" under Article 268 of the present Constitu tion. The regulation has, therefore, always been and still is an existing law operating subject to the Constitution of the day.

229. Since the continued operation of the Frontier Crimes Regulation is subject to the Constitution a question arises whether the Regulation is `law' within the meaning of Articles 4 and 9 of the Constitution. In the case reported in P L D 1969 S C 14, this Court has had occasion to observe that "law" in Article 2 of the 1962 Constitution (corresponding to Article 4 of the Constitution) is as comprehensive as the American "due process of law" clause in a new garb. A reference, therefore, to the views of the American jurists as contained in 16 American Jurisprudence will, be helpful to the discovery of the true meaning of the word "law" as contained in the said two Articles of the Constitution. The following are the extracts from that book: ‑

230. " `Due process of law' must be understood to mean law in the regular course of administration through Courts of justice (Vide 16 American Jurisprudence 2d paragraph 546).

231. It means law according to the settled course of judicial proceedings or in accordance with natural, inherent, and fundamental principles of justice, enforceable in the usual modes established in the administration of government with respect to kindered matters.

232. A general law administered in its legal course according to the form of procedure suitable and proper to the nature of the case, conformable to, the fundamental rules of right and affecting all persons alike, is `due process of law'.

233. Due process has to do with the denial of fundamental fairness shocking to the universal sense of justice; it deals neither with power nor with jurisdiction, but with their exercise.

234. `Law embraces all legal and equitable rules defining human rights and duties and providing for their enforcement, not only as between man and man, but also between the State and its citizens. (Vide 16 American Jurisprudence 2d paragraph 546).

235. It is a general public law of the land (paragraph 547).

236. It is the law that operates on all persons alike and do not subject the individual to the arbitrary exercise of the powers of Government.

237. Under the `due process of law' no change in procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action which relate to process of law, protect the citizen in his private right and guard him against the arbitrary action of Government (paragraph 549).

238. Substantive due process has been roughly defined as the constitutional guarantee that no person shall be deprived of his life, liberty, or property for arbitrary reasons, such deprivation being constitutionally supportable only if the conduct from which the deprivation follows is prescribed by reasonable Legislation (i.e. the Legislation the enactment of which is within the scope of legislative authority) reasonably applied (that is, for a purpose consonant with the purpose of the Legislation itself). To the extent that arbitrary action involves procedural arbitrariness, such action is, of course, barred by the principles of due process. In general terms it has been stated that the requirement of .due process of law may be satisfied if there is no un-authorised and merely arbitrary exercise of the powers of Government to the detriment of the people or of some of them.

239. It has been authoritatively stated that the right of a citizen to due process of law must rest upon a basis more substantial than favour or discretion, and in many instances statutes have been held unconstitutional on the ground that they operated to vest in the Courts or in other officials an arbitrary power over matters protected by the Constitution (paragraph 550)."

240. Applying the concept of `law' as contained in the extracts just quoted, section 11 of the Frontier Crimes Regulation (hereinafter called the F. C. R. which empowers the Deputy Commissioner to refer the determination of the W guilt or otherwise of a person to the "Council of Elders," does not seem to me to be "law" as contemplated in Articles 4 and 9 of the Constitution. The section gives unfettered powers to the Deputy Commissioner to refer the said question for decision to a Council of Elders, if he thinks it inexpedient that the matter should be determined by any Court of the classes prescribed in section 6 of the Code of Criminal Procedure. No guidance, at all, has been laid down in what circumstances the reference to the Council of Elders should be made. No rule of procedure or evidence has been prescribed for a proceeding before such Council. The Council is not prevented from adopting methods which are arbitrary and inconsistent with reason and the civilised decencies. The section has nothing to do with the regular course of administration through Courts of justice, and does not exclude arbitrary action involving procedural arbitrariness. It constitutes a denial of fundamental fairness shocking to universal sense of justice. This view receives support from the case of Samundar v. The Crown P L D 1954 F C 228 wherein Akram and Cornelius, JJ. have observed as follows:-

241. Observations by Akram, J. with reference to section 11 of the F. C. R.:

242. "It is to be noticed that under section 11 of the Regulation a particular official, namely, the Deputy Commissioner is authorised to refer a case to the Council of Elders so that it may after making enquiries, such as may be necessary, submit its finding to the Deputy Commis sioner, who thereupon, if he accepts a finding of guilty can convict and pass proper sentence (section 12) subject to revision by the Commissioner (section 50): It is evident that an order of the above nature cannot be regarded as having been made judicially by a Court of law. The Deputy Commissioner and the Commissioner in this respect appear to have been mentioned in the Regulation merely as persona designata and not as judiciary. The conviction and the sentences in question, therefore, cannot be treated as made in the course of performance of the normal duty of administration of justice in a litis contestatio. These orders are merely executive or administrative orders which have been made with a view to exterpating a social evil and consequently the Courts cannot enquire into the validity of the finding of the Council of Elders or of the orders of the Deputy Commissioner confirmed in revision by the Commissioner. Furthermore the jurisdiction of the Courts seems to have been clearly and expressly barred by section 50 of the Regulation."

243. Observation by Cornelius, J:

244. "On a careful consideration of the statutory provisions, and the procedure actually followed in enquiries of this nature, I am satisfied that, if the ascertainment of the commission of an act, falling within one or more of the definitions of offences contained in the Penal Code, by the mode prescribed in section 11, Frontier Crimes Regulation can be regarded as a mode of justice at all, it is certainly not such a mode as is operated through the ordinary Courts of justice acting in accordance with the law of procedure and of evidence, but is rather to be assimilated to, and included among, the agencies of the general administration.

245. .

246. .

247. .In the case of Jirgas, no procedure of any kind is laid down. The requirements are that there should be such enquiry `as may be necessary' and that the accused person should be heard. By the proviso to section 50 of the Regulation, the Commissioner is debarred from interfering with a finding of fact recorded by a Jirga, which has been accepted by the Deputy Commissioner, `unless he is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice'. In the absence of any rule, the ascertainment of material irregularity or defect except perhaps in cases where there has been no enquiry at all, or the accused person has not been heard at all, would vary according to the opinion of the particular Commissioner in relation to each particular case, and consequently there is no scope for imposing any specific measure of regularity upon the proceedings of Jirgas, with the aid of section 50. Nor does the second provision furnish any scope for development of a rule in this respect. There being no regular procedure, such as is laid down in the Criminal Procedure Code for the preservation of strict impartiality sand fairplay between the prosecutor and the accused, the mere avoidance of a proceeding on the discovery of a procedure which is in itself likely 'to occasion a miscarriage of justice' cannot be said to furnish adequate scope for enforcing the rule of equal opportunity to both sides.

248. The form of procedure being thus left to be determined arbitrarily by the Jirga, it seems clear enough that the intention of the Regulation also is that none of the recognised rules of evidence should be binding upon, the Jirga. The main principles which underline the law of evidence are exclusion of irrelevant matter and of hearsay, coupled with insistence upon the production of the best evidence, and upon a strict application of these rules depends the safe administration of justice Administra tive agencies are very frequently saved from the application of these rules by statute or otherwise, and that is certainly the case with respect to Jirgas. In these very cases, the Jirga has declared that it held 'open and secret enquiries', which suggests investigations of a nature entirely different from those which are permissible in a Court of law. Thus, in such enquiries, one would expect to receive a good deal of hearsay evidence, and statements based on prejudice or pre‑conception and even mere gossip may be introduced. In such circumstances, it is impossible to preserve the rule of the best evidence.

249. It is likely that some, and it may be a considerable portion, of the evidence which satisfied the Jirga was received ex part, and thus without cross‑examination. The statement that 'open and secret enquiries' were made at Lahore clearly suggests the possibility that such questioning was carried on in the absence of the accused persons. Moreover, information gathered by putting questions in open assembly can never have the quality of judicial evidence, nor can information: obtained by secret investigation be so regarded.

250. The language employed in the Order of Reference which has been cited: above, may also have led the Jirga to take 'official notice' of certain matters which were in fact justifiable issues by reason of the statements having been made by high administrative authorities. For an administrative agency, the taking of 'official notice' may be perfectly in order, but it is highly prejudicial to the dispensation of justice.

251. The process of decision provided under the Regulation is also foreign to justice as administered by the Courts. The hearing is before a Jirga but the power of decision is vested in the Deputy Commissioner, who does not see or hear the accused or any of the witnesses, and is not empowered by law to do so, even if he should so desire. In these circumstances the Jirga is a merely advisory body, and since the Deputy Commissioner does not have the case presented before him through counsel, it is obvious that his decision is wholly vicarious. Decisions of this nature are common enough on the administrative side, but they are obnoxious to all recognised modern principles governing the dispensation of justice. In such circumstances, it is impossible to preserve public confidence in the justness of the decision. That may be of secondary importance to an administrative agency, but it is of permanent importance in a Court of Justice. The mere fact that a revision is permitted obviously does not remedy the situation in this respect. The present cases provide clear proof that the Commissioner did not feel bound to examine the case of each accused person before him on its merits, for he has disposed of a great number of these cases by means of a standard order of a composite nature, designed to apply to a number of different contingencies, but containing no reference to any accused person by name, much less to the particular offence of which he is found guilty and the evidence upon which that finding was based.

252. A feature common to administrative agencies is that they are concerned more largely with the vindication of public interest than with the enforcement of private rights. That feature appears very clearly throughout the proceedings actually taken in the present cases, which in this respect, cannot be said to have been conducted otherwise than in compliance with the express provisions and the underlying intentions of the Frontier Crimes Regulation.

253. I am therefore clearly of the opinion that the proceedings which have been taken in the present cases are not to be regarded as proceedings in justice, but that they are from every point of view to be regarded as proceedings before an administrative agency, specially provided for the settlement of criminal causes, and specifically adapted to the conditions prevailing in Frontier districts, at any rate at the time when the Regulation was enacted. .

254. .. but, it will be clear from the foregoing that since the proceedings before the Deputy Commissioner and the Commissioner were not amenable to any rule which might be regarded as a rule of 'due process' or 'best evidence', it is impossible for this Court to apply any principles whatsoever which may possess the slightest validity for judging the correctness or otherwise of their decisions. The authorities from whose decisions an appeal is sought to be brought before this Court, are practically free from all rules almost to the same extent as was the Supreme Court in the Tasmania case. To allow an appeal would be plainly contrary to the intention of the authority which enacted the Frontier Crimes Regulation, 1901 which was to leave the Deputy Commissioner and the Commissioner practically unfettered in relation to their decisions.

255. The guiding principle for these authorities which appears clearly from the Regulation is that of public policy, which this Court is not competent to enforce. The Regulation indeed provides by sections 8, 9 and 52, for reference of certain civil disputes, which if unresolved, are likely to lead to bloodshed or disturbance of the peace, or which involve parties belonging to 'a frontier tribe', to Councils of Elders for a finding, on the basis of which the Deputy Commissioner may award a decree in so far as the finding is not 'contrary to good conscience or public policy' and a revision is allowed to the Commissioner on certain grounds, one of which is that the decree is 'contrary to good conscience or public policy'. Obviously, such a decree is no simple decree of a Civil Court of general jurisdiction. It is essentially to be regarded as an instrument embodying a settlement of rights between the contestants, which also satisfies the interests of public policy, by which can only be understood, in relation to an unsettled or frontier area the general administrative policy of the Government.

256. I entertain no doubt that decisions of the same authorities under sections 11, 12 and 50 of the Regulation partake of the same character and am thus confirmed in the view that the subject‑matter of these petitions is not appealable in this Court. As in the case of decisions by most administrative agencies, in the absence of statutory provisions the only mode of judicial revision is that which depends upon application of the doctrine of ultra vires. In the present state of the law, this mode of relief would appear to be confined to an application in the nature of habeas corpus under section 491, Cr. P. C."

257. In the particular case before us the Deputy Commissioner has given no reason whatsoever as to why he considered it inexpedient that the case of the prisoner should be tried under the regular procedure by an ordinary Court. It appears that although two of the accused who belong to the Tribal Areas of Kohlu applied for trial under section I 1 of the F. C. R., the prisoner and co‑accused Muhammad Shafi objected to such trial, but their application was rejected without any reason.

258. The Penal Code, the Code of Criminal Procedure and the Evidence Act apply throughout Pakistan including the Tribal Areas, unless the Deputy Commissioner of a Tribal Area arbitrarily intervenes under section 11 of the F. C. R. It is, therefore, evident that if the Deputy Commissioner had not arbitrarily intervened, the prisoner and his co‑accused Muhammad Shafi could and should have been tried under the general law of the land. The application of section 11 of the F. C. R. to the prisoner is arbitrary for more than one reason. The prisoner was arrested in Lahore. He is neither subject to nor familiar with the Tribal customs. The "Council of Elders" as constituted under the F. C. R. will necessarily bring in persons who are not the compeers of the prisoner. Council of Elders under section 2 of the F. C. R. "means a Council of three or more persons convened according to the Pathan, Baluch or other usage, as the Deputy Commissioner may in each case direct". Evidently, the prisoner is neither a Pathan nor a Baluch nor is he subject to some usage existing in the Tribal Area. A trial of the prisoner by the Council of Elders would, thus, be a violation of the very principle upon which trial by the "Council of Elders" like trial by jury is founded. Furthermore, there is no appeal provided under the F. C. R. from any decision of a Council of Elders finding the accused guilty of an offence. In these circumstances the trial of the prisoner under section 11 of the F. C. R. is in contravention of the provisions of Articles 4 & 9 of the Constitution and not in accordance with `law' as contemplated therein and to which he is accustomed, and which has been guaranteed to him under the Constitution.

259. It may also be mentioned that except the alleged statement of one co‑accused to another implicating the prisoner in the offence made before a Police Officer there is nothing so far to implicate the prisoner in any offence. Furthermore, the prisoner to whom the statement has been attributed has denied it at the earliest opportunity. In these circumstances the following observations of Chief Justice Cornelius in the case of State .v. Nawab Girl P L D 1963 S C 270 with which I respectfully agree, seem to be aptly applicable:-

260. "The Courts cannot be the final judges in a question of expediency which is entrusted by the law to the executive for decision, but it may be permitted to question whether it can ever be expedient to refer under section 11, for trial a set of facts which do not constitute a case at all. If the questions were whether the two respondents had an eye on the shop, that would be susceptible of enquiry and decision, but a positive answer would not suffice to connect them with the killing, on the facts as they appeal. Something more would be needed to make out a prima facie case, and it is clear that nothing more bad been discovered. It may well be that a Jirga would have discovered this lacuna for itself, had it taken up the case, but we do not conceive that section 11 is designed to empower a Jirga either to make out a case, or itself to raise for decision a question of the guilt or innocence of the persons sent to it for enquiry, when the reference on its facts does not make out such a question.

261. At a time when to a rapidly increasing extent, the jurisdiction, long -established and familiar, belonging to the ordinary Courts, is being avoided in cases of serious crimes by orders of withdrawal, made on the grounds of expediency, it is of importance that it should be known, in what kind of cases and in what manner, the power is being exercised. The present is a case whose facts give ample cause for concern whether public justice is advanced by proceedings of this kind. Or whether, on the contrary, if it becomes a general risk that men may be sent to be tried by Jirga when there is visibly no case against them, and they are deprived of redress through the ordinary forms of law, there is not a danger that the image of public justice, built up with the aid of careful legislation and steady implementation of rules of procedure for at least a hundred years, will inevitably be destroyed. What might follow can well be imagined. An immediate result will be that devotion to law and to lawfulness in behaviour will be at a total discount."

262. In my opinion if there are two sets of procedure applicable to the trial of an accused person, and one of them is normal, free from arbitrariness and consistent with reason and justice then this procedure should be preferred to the other one which is not so. Assuming, therefore, that section 13 of the F. C. R. is `law' within the meaning of Articles 4 and 9 of the Constitution, the regular procedure by an ordinary Court should have been adopted for the trial of the prisoner.

263. My conclusions may be summed up thus:-

264. Pakistan is governed by the rule of law, as embodied in Articles 4 and 5 of the Constitution. The Constitution creates no right and imposes no duty in vain.

265. Remedy or no remedy, nobody is relieved of his basic obligation to obey the Constitution and law.

266. Each one of the three organs of the State the executive, the Legislature and the Judiciary is bound by the oath not only to preserve, protect and defend the Constitution but also to abide by the Constitution and the law.

267. The `will' of the Constitution is supreme, and nobody can be permitted to flout the 'will'. It is inconceivable that the Constitution be no followed. Anything done in violation of the Constitution is void and has no existence in law. No violation of the Constitution can be tolerated.

268. Fundamental Rights are available throughout Pakistan including the Tribal Areas and the Superior Courts have jurisdiction to enforce them within the limits of their respective territorial jurisdiction including the Tribal Areas.

269. A Fundamental Right not suspended under Article 233 of the Constitution remains fully operative, and everybody in Pakistanis under an obligation to respect it. The mere fact that an aggrieved person is temporarily prevented from moving any Court for the enforcement of a Fundamental Right does not relieve an authority of its obligation to comply with it.

270. A High Court has jurisdiction under Article 199 of the Constitution to grant relief to a person arrested illegally within its jurisdiction although he is for the time being detained outside the jurisdiction.

271. A High Court has power to grant relief to a person, detained within it territorial jurisdiction although he was arrested illegally outside the jurisdiction.

272. Where the liberty of a person is involved a High Court can exercise it jurisdiction under Article 199 of the Constitution and grant him relief even though he has misconceived his remedy and come up with a application under sections 498 and 561‑A of the Code of Criminal Procedure.

273. Under Article 199 of the Constitution a High Court has a variety of powers, any one of which can be exercised to grant relief to the aggrieved person.

274. Article 199 of the Constitution is available not only for the enforcement of the Fundamental Rights but also to enforce the rights and obligations as contained in Articles 4 and 5 of the Constitution.

275. Frontier Crimes Regulation is `existing law' under Article 268 of the Constitution and it is continued in force subject to the Constitution and until altered, repealed or amended, etc.

276. Section 11 of the F. C. R. is not `law' within the accepted connotation of the term, and is, therefore' not `law' as contemplated in Articles 4 and 5 of the Constitution.

277. Where two kinds of procedure are applicable one which is normal, free from arbitrariness and consistent with reason and justice, and the other that is not so, the former should be preferred.

278. If some of the facts and circumstances as alleged by the petitioner had turned out to be true on inquiry, it was eminently a fit case in which this Court should have exercised its jurisdiction under Article 184(3) of the Constitution. Having regard to the fact, however, that on the 28th of February, 1974, we passed orders dismissing Criminal Appeal No. 2 of 1974, and directing the High Court of Sind & Baluchistan to conclude the hearing of the Constitution Petition No. 1143 of 1973 on merits as expeditiously as possible. I think it desirable that this Court refrains from exercising the said jurisdiction.

279. As regards Criminal Appeal No. 2 of 1974, 1 may add that on the 14th of October, 1955, the West Pakistan Establishment Act, 1955 came into effect establishing the Province of West Pakistan as one unit. Section 7 of the Act extended the jurisdiction of the High Court of West Pakistan including the writ jurisdiction to the entire Province of West Pakistan. This High Court was constituted under the High Court of West Pakistan (Establishment) Act, 1955, which, too, came into effect from the 14th of October 1953. The aforesaid Act, however, was amended in November 1955, and the jurisdiction of the High Court of West Pakistan in its entirety was excluded from the Tribal Areas. This position remained till the promulgation of the 1956 Constitution.

280. President Order No. 11 of 1961 called Special Areas Restoration of Jurisdiction Order was a Constitutional Order made on the 5th of July 1951, in pursuance of the Proclamation of the 7th of October, 1958. Under this Proclamation the 1956 Constitution was abrogated, and the Country was brought under Martial Law rule. President's Order No. 11 restored to the High Court of West Pakistan the same jurisdiction as it had on the 14th of October 1955, in respect of the entire Province of West Pakistan. The position regarding the High Court remained thus and continued to be so even after the promulgation of the 1962 Constitution and until the Constitu tion (First Amendment) Act was passed in 1963 (Act I of 1964). The amendment came into effect from the .10th of January 1964, and it enter alia restored the Fundamental Rights to the people. Article 223(5) of the 1962 Constitution, however, provided:

281. "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."

282. Act II of 1964 was passed on the 7th of April 1964, in pursuance of the said Article 223(5), and came into effect from the 10th of January 1964, i.e., the date when the Constitution First Amendment Act (Act I of 1964) came into effect. Section 7 of Act II restored to the High Court the same jurisdiction as was exerciseable by it in relation to the Tribal Areas of Quetta Division before the commencement of the Constitution (First Amendment) Act (Act I of 1964). Act II of 1964 did not come in for consideration .in the aforesaid case of Hafiz Umar Gul. It may be mentioned here that we have since decided to make certain clarifications in our decision in Hafiz Umar Gul's case. The Interim Constitution came in April, 1972, and under Article 261(7) thereof the position as it existed since the passing of the Constitution (First Amendment) Act was preserved. Article 247(7) of the Constitution is in terms similar to Article 261(7) of the Interim Constitution.

283. The Parliament as constituted under the Constitution has passed no such law as is contemplated under Article 247(7). Nevertheless, the proviso saves the jurisdiction that a High Court exercised in relation to a Tribal Area immediately before the commencing day, i.e, the 14th of August 1973. I have already said that the position before the commencing day was that a High Court exercised jurisdiction including writ jurisdiction in relation to a Tribal Area.

284. Furthermore, under Article 268 of the Constitution "all existing laws" have been continued in force, so far as applicable, but subject to the Con stitution, and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature. Act II of 1964 is an "existing law", and the Act not having been altered, repealed or amended by the appro priate Legislature has continued in force in the manner contemplated under Article 268(1). Section 7 of Act II of 1964 restored to the High Court the same jurisdiction, as was exerciseable by it in relation to the Tribal Areas of Quetta Division before the commencement of the Constitution (First Amendment) Act, 1963 (Act I of 1964). Thus, by operation of, first, article 261(7), Proviso of Interim Constitution, and, subsequent of Article 247(7), Proviso of the Constitution, the jurisdiction of the High Court of Sind & Baluchistan under the Constitution including the writ jurisdiction extends to the entire Province of Baluchistan including the Tribal Area. In my opinion, therefore, the High Court of Sind & Baluchistan has rightly assumed jurisdiction in the matter.

285. As regards Civil Review Petition No. 37 of 1973, for the reasons already stated, I think the judgment of Hafiz Umar Gul's case does require clarifica tion, and it should be clarified thus:

286. Firstly, I would say that the impugned judgment did not take notice of Act II of 1964. Act II of 1964 restored in relation to the Tribal Areas of Quetta Division certain jurisdiction of the Supreme Court, and the entire: jurisdiction of a High Court including writ jurisdiction, and such jurisdiction of the Supreme Court and the High Court of Sind & Baluchistan have continued to exist under Article 247(7) read with Article 268 of the present Constitution.

287. Secondly, I would say that Article 223(5) of the 1962 Constitution did: not affect in any way the jurisdiction of the Supreme Court or a High Court which the Supreme Court had under Articles 58, 60 and 123 and a High Court had under Articles 98 and 123 of the said Constitution, and such. Courts had under the 'existing laws' as defined in Article 225(7) of that Constitution.

288. Thirdly, I would say that President's Order No. 11 of 1961 was an `existing law' under the 1962 Constitution, and as such it continued in force subject to the Constitution, and with the necessary adaptation, until altered, repealed or amended by the appropriate Legislature.

289. The President's Order was not a "Central Law" as defined in Article 242 of the said Constitution, and the Order, therefore, did not require any direction from the President as was contemplated under Article 223(1) thereof for its application in the Tribal Areas.

290. Fourthly, section 7 of the Establishment of West Pakistan Act, 1955, had restored the jurisdiction of the High Court of West Pakistan including the writ jurisdiction throughout the Province of West Pakistan including the Tribal Areas. The jurisdiction though abolished for a time was restored by President's Order No. 11 of 1961.

291. It is, therefore, not correct to say that President's Order No. 11 of 1961 had for the first time conferred upon the High Court of West Pakistan writ jurisdiction in respect of the Tribal Areas.

292. In view of the fact that Constitution Petition No. 1143 of 1973 under Article 199 of the Constitution pending before the High Court of Sind & Baluchistan is practically on the same facts I think it desirable that the g, Court should finally decide the matter in the light of the observations mad in this judgment. No action on Criminal Petition No. 61‑P of 1973 is, therefore, necessary and it is disposed of accordingly.

293. I dismiss Criminal Appeal No. 2 of 1974. The prisoner, Ch. Zahoor Elahee shall, however, continue to remain on bail pending the hearing of Constitution Petition No. 1143 of 1973 by the High Court.

294. I should like to observe that the High Court of Sind & Baluchistam should hold a detailed inquiry into the various allegations regarding the authenticity of the warrant and the conduct of the Police Officers in removing the prisoner from Lahore to Kohlu without having complied with the require ments of the Constitution and law, and take or direct such suitable action against the delinquent as is called for.

295. I allow Civil Review Petition No. 37 of 1973.

296. ANWARUL HAQ, J.-‑ This order will dispose of Criminal Original Petition No. 61‑P of 1973 and Criminal Appeal No. 2 of 1974 as well as Civil Review Petition No. 37 of 1973.

297. The first two matters have arisen out of the same cause of action, namely the arrest and detention of the petitioner's brother, Ch. Zahoor Ilahi, a Member of the National Assembly of Pakistan. It is claimed that the said Member is a prominent leader of the Opposition and a founder member of the United Democratic Front. It is alleged that, with a view to deterring him from performing his duties as a leader of the Opposition, he has been arrested every now and then on one pretext or another, but being within territories where the writs of the superior Courts do run, was able to have recourse to the Courts. It is said that with a view to circumventing the jurisdiction of the superior Courts, Ch. Zahoor Ilahi has since been taken to the tribal area of Kohlu in the Sibbi District of the Baluchistan Province, after having been arrested from his home in Gulberg, Lahore, by the Punjab Police at about 3.00 p.m. on the 12th of November, 1973. The Police Officers did not have any warrant of arrest in their possession when they first visited his house. However, at the insistence of the prisoner that he would not allow himself to be taken into custody except under a warrant, the Superintendent of Police went away and after about one hour produced a warrant purporting to have been issued by the Assistant Commissioner and Additional District Magistrate, Kohlu (Respondent No. 4 in the Original Petition) in a case entitled State v. Mohammad Shafi etc. under sections 120‑B, 121, 121‑A and 122 of the Pakistan Penal Code. The prisoner was then taken to Multan, from there to Rohri in the Sind Province and then by train to a place two or three stations before Quetta, where his custody was transferred to the Baluchistan Police, assisted by the armed personnel of the Federal Security Force. The Baluchistan Police took him to Quetta and then to Kohlu, which bad been rendered inaccessible to the general public because of military operations then being conducted in the adjoining areas.

298. The petitioner has alleged, on the basis of information since collected and received by him, that Ch. Muhammad Shafi, who is also opposed to the party in power, was called on the 8th of November 1973, at 9.00 p.m. by one Muhammad Aslam, claiming to be an Officer on Special Duty with the then Governor of the Punjab, to his residence on a false pretext, and then forcibly taken to the office of the Crimes Branch by a police party headed by Sardar Abdul Wakeel Khan, D. I. G. (Special Branch), Punjab. From there he was taken to Lahore Airport and flown on the following morning to Quetta Military Airport in a small aeroplane. The petitioner has further alleged that the Police Officers accompanying Ch. Muhammad Shafi had taken with them bags of arms and ammunition in the same aircraft which were unloaded at the Quetta Military Airport. From Quetta, Ch. Muhammad Shafi was taken to Kohlu, alongwith the bags of arms and ammunition, and at Kohlu, a false case was registered against him and two others under the sections of the Penal Code already mentioned. According to the petitioner, the authori ties falsely alleged in the First Information Report of that case that Ch. Muhammad Shafi and his co‑accused were acting as agents of Ch. Zahoor Ilahi, M. N. A., for smuggling arms and ammunition into Baluchistan and supplying them to the Marri Tribesmen, and that the accused persons were arrested in Kohlu area while in possession of such arms and ammunition. The complicity of Ch. Zahoor Illahi is said to have been disclosed by Ch. Muhammad Shafi accused to the other co‑accused.

299. It is alleged in the Original Petition under Article 184(3) of the Constitution that the prisoner's life was in imminent and extreme danger as he was being kept in Kohlu which was adjacent to the Marri/Bugti area, the centre of armed disturbances. It is submitted that the case against the prisoner is the latest link in a chain of cases instituted against him and his relatives and associates for political reasons. Lists of such cases have been appended with the petition. It is submitted that the prisoner has been spirited away to a tribal area in furtherance of a conspiracy under the belief that in that area he shall be beyond the reach of the process of the Courts. The petition, while praying for the production of the prisoner in Court, ends with the following Plea:‑

300. "Bona fide implementation of the law is implicit under the very concept of law. Fundamental Right No. 9 guarantees that no person shall be deprived of his liberty except in accordance with law, which in the respectful submission of the petitioner means that no person shall be deprived of his liberty except in the honest implementation and execu tion of law. The case for the petitioner being that the prisoner has been taken into custody in mala fide execution of some alleged powers, and that Fundamental Right No. 9 has been violated in respect of the prisoner."

301. As regards the specific requirement of clause (3) of Article 184 of the Constitution, the petition contains an averment to the effect that "apart from the fact that the prisoner is a Member of the National Assembly of Pakistan, and his presence during the session of the National Assembly is of importance, the very fact that the institutions of protection should be used as Instrument of oppression by misuse of alleged powers raises a question of great public importance.

302. The Petition was admitted to a full hearing at Peshawar on the 17th of December 1973 and, in view of the importance of the matter, it was directed that, apart from the respondents, notice should also issue to the Attorney ‑General for Pakistan and the Advocates General of Punjab, Sind & Baluchistan and the North‑Western Frontier Province. Interim bail was allowed to the prisoner on the 28th of January 1974.

303. Soon after the arrest of Ch. Zahoor Ilahi at Lahore, an application under sections 498 and 561‑A of the Criminal Procedure Code was moved before the Lahore High Court praying for the release of the prisoner on bail. 'The said application was, however, dismissed on the 14th of November 1973, as infructuous on the short ground that the learned Advocate General, Punjab informed the Court that the prisoner was not within the jurisdiction of the Lahore High Court, having been taken to some place in the Province of Baluchistan.

304. On the 16th of November 1973, on the same facts, Malik Ghulam Jilani, Secretary General, Tehreek‑e‑Istiqlal‑e‑Pakistan, moved Constitution Petition No. 1143 of 1973 under Article 199 of the Constitution before the High Court of Sind & Baluchistan against the Assistant Commissioner, Kohlu and the Province of Baluchistan, praying for the release of Ch. Zahoor Ilahi on the ground that the entire proceedings relating to his arrest and detention were without lawful authority. As an interim measure, it was prayed that either the prisoner be released on bail, or he be removed to the Central Prison, Karachi, to enable him to get adequate legal and medical assistance.

305. Although the High Court of Sind & Baluchistan did not pass an order for the production of the prisoner, nor did it allow him interim bail, yet by an order made on the 17th of December 1973, it held that it had writ jurisdiction in the matter, for the reason that the same had been restored in relation to the tribal areas of Quetta Division, by Act II of 1964 and had been preserved by the proviso to clause (7) of Article 261 of the 1972 Interim Constitution, and later by the proviso to clause (7) of Article 247 of the 1973 Constitution of the Islamic Republic of Pakistan. The High Court reserved for further consideration the question whether the Frontier Crimes Regulation, 1901, was still in force in the Quetta Division.

306. Criminal Appeal No. 2 of 1974, by the Province of Baluchistan, is directed against this preliminary decision of the High Court of Sind & Baluchistan on the question of its constitutional jurisdiction in relation to the tribal area of Kohlu. Relying on the latest judgment of this Court in Haft Umar Gut and another v. Government of Pakistan P L D 1973 S C 544 it is contended that the High Court has erred in thinking that Act II of 1964 was still operative, whereas, in fact, the same had not been extended to the tribal area concerned as required by clause (3) of Article 247 of the Constitution. It is next sub mitted that in any case, the jurisdiction that was restored by the said Act was only the ordinary appellate and revisional jurisdiction of the High Court in civil and criminal matters, but not its extraordinary constitutional jurisdiction as conferred by Article 98 of the 1962 Constitution, and the corresponding Articles of the 1972 Interim Constitution and the 1973 Permanent Con stitution.

307. Civil Review Petition No. 37 of 1973 has been instituted by the learned Attorney General on behalf of the Government of Pakistan, praying that the judgment delivered by this Court in the case of Hafiz Umar Gut and others, referred to above, be reviewed on the ground that the Court did not take into consideration the Tribal Areas Restoration of Jurisdiction Act 1964 (Act II of 1964) which annulled the effect of the newly added clause (5) of Article 223 of the 1962 Constitution, as inserted by the Constitution First Amendment Act, 1963. It is submitted that the President's Order No. 11 of 1961 restored not only the civil and criminal jurisdiction of the High Court but also its writ jurisdiction in relation to tribal areas, and that it did not require to be specially extended to such areas under clause (1) of Article 223 of the 1962 Constitution.

308. In view of the position taken by the Baluchistan Government in Criminal Appeal No. 2 of 1974, the learned Attorney General, during the course of arguments, submitted that be would confine his prayer for review to only the ordinary civil and criminal jurisdiction of the High Court, and abandon his original stand that the writ jurisdiction of the High Court was also available in the tribal areas of Baluchistan.

309. The review petition is barred by 208 days, but I would condone this delay in view of the public importance of the constitutional questions of jurisdiction of the Supreme Court and the High Courts involved in this case.

310. This is the first occasion on which the original jurisdiction of this Court under Article 184(3) of the 1973 Constitution has been invoked by a citizen of Pakistan. It is of some interest to note here that although original jurisdiction of the nature conferred by the said Article, has been available to the Supreme Court of Pakistan, in one form or another, under the successive Constitutions promulgated in the country, yet there has been only one case so far, namely Begum Zeb‑un‑Nisa Hamidullah v. Pakistan P L D 1958 S C (Pak.) 35, in which this jurisdiction has been previously invoked.

311. On the facts alleged by the petitioner and admitted by the respondents, as well as on the elaborate arguments addressed at the Bar by the learned Attorney General for Pakistan, learned Advocates General of the four Provinces of Pakistan, and Mr. Manzoor Qadir appearing for the petitioner Manzoor Ilahi, several questions of constitutional and public importance appear to arise for consideration in these cases, viz:‑

(1) Do the High Courts and the Supreme Court have territorial jurisdic tion in the matter in view of the provisions contained in clause (7) of Article 247 of the Constitution;

(2) if so, do the facts and circumstances surrounding the arrest and detention of Ch. Zahoor Ilahi (hereinafter referred to as the `prisoner') raise a question of public importance with reference to the enforce ment of any of the fundamental rights, so as to bring the case within the ambit of clause (3) of Article 184 of the Constitution;

(3) even if the Court finds that the case involves a violation of any of then fundamental rights, can it grant any relief to the prisoner in view of the continuance in force of the Proclamation of Emergency under Article 232 and the Order of the President under Article 233(2) of the Constitution, suspending the right of the citizen to move any Court for the enforcement of certain specified fundamental rights; and

(4) if the questions touching the territorial jurisdiction of the Court, the maintainability of the petition under Article 184(3) and the enforce ment of the fundamental rights concerned are answered in favour of the prisoner, should the Court make any operative order in view of the fact that the habeas corpus petition moved on behalf of the prisoner is still pending final adjudication in the High Court of Sind & Baluchis tan at Karachi. and at least some of the allegations made against the executive authorities as regards mala fides, fabrication of documents and falsification of records, would need factual investigation.

312. Taking first the question of territorial jurisdiction, the relevant provision, as contained in clause (7) of Article 247 of the Constitution, is as under:‑

313. "Neither the Supreme Court nor the High Court shall exercise any jurisdiction under the Constitution in relation to a tribal area, unless Parliament by law otherwise provides:

314. 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."

315. It will be seen that the jurisdiction of the Supreme Court and the High Courts is excluded only in matters falling within the ambit of the phrase "in relation to a tribal area."

316. In order to understand the full significance and meaning of this phrase, it is necessary to refer to the other clauses of this Article as well as to the contents of the preceding Article 246. Both these Articles are contained in Chapter 3 of Part XII of the Constitution. which Chapter is headed "Tribal Areas". Article 246 divides tribal areas into two categories, viz., the Federally Administered Tribal Areas, and the Provincially Administered Tribal Areas. According to the definition contained in clause (b)(2) of Article 246, Kohlu in the Marri-Bugti area of Sibbi District is a Provincially Administrated Tribal Area. Under clause (1) of Article 247, the executive authority of the Province extends to such an area. Clauses (2) to (5) of the said Article provide for the application of Federal and Provincial laws to such areas at the discretion of the President and the Governor, and they also confer power on these authorities to make regulations for the peace and good government of these areas. Clause (6) of the Article gives power to the President to direct at any time that a whole or any part of the tribal area shall cease to be so. Having made these special provisions for the administration of the tribal areas, the Constitution then proceeds to enact in clause (7) of the Article a restriction on the jurisdiction of the judicial organs of the State in relation to these areas, subject to the qualification contained in the proviso to the said clause.

317. These special provisions have a historical background, namely, that before Independence, the tribal areas were not a part of British India, although they were part of India. As stated by Keith in "Constitutional History of India 1600‑1935" (Second Edition, page 223), the territories vested in the British Crown "were made up of the Governors' Provinces and the Chief Commis sioners' Provinces which comprised British India; India included British India, all territories of any Indian Ruler under the suzerainty of His Majesty, all territories under suzerainty of such Ruler, the tribal areas and any other territories which His Majesty in Council, after ascertaining the views of the Federal Government and Legislature, might declare to be a part of India". The learned author further states that "the tribal areas included the Frontier lands of India and Baluchistan which were not parts of British India or Burma or any other Indian or foreign State". Special arrangements vi‑ere made by the British Crown to administer these areas, by entering into treaties with Rulers of Indian States and Sardars of tribal areas. Various ls ‑s obtaining in British India were extended to these areas by special notifications or Regulations issued from time to time. It is not necessary to enumerate these measures for our present purpose, and it is sufficient to state that until the establishment of Pakistan, the tribal areas continued to be outside British India. It was for this reason that the Extradition Act (15 of 1903) was made applicable for the purpose of giving effect in British India to warrants of arrest issued by the authorities of the Indian States or the tribal areas. See Tahilram Khanchand v. Emperor A I R 1938 Sind 46 and Devki Nandan L. Nathuram, Accused v. Emperor A I R 1940 Pesh. 30.

318. However, all this has changed since the establishment of Pakistan. As held by a Full Bench of the former High Court of West Pakistan in Sher Muhammad and two others v. The State P L D 1956 Lab. 1056 and by this Court in the Superin tendent, Land Customs v. Zewar Khan and 2 others P L D 1969 S C 485 after a detailed exami nation of successive legal and constitutional instruments, the tribal areas now form part of Pakistan. It appears that the Constitution makers have through out acted on the assumption that these areas have peculiar features of their own, including a well‑defined tribal structure of society, and a special set of customs and usages, having the force of law and enforceable through the agency of their own Council of Elders. It is for this reason that, in succes sive Constitutions of Pakistan, special provisions have continued to be made for the administration of these areas; so that their inhabitants are governed by laws and customs with which they are familiar and which suit their genius. How long these areas are to be treated differently from the rest of Pakistan in the matter of administration of justice, enforcement of Funda mental Rights and other allied matters, is a question of policy, falling outside the purview of the Courts.

319. Another important aspect having a bearing on the interpretation of the clause in question is that the Constitution confers jurisdiction on the Supreme Court for the whole of Pakistan. Clause (2) of Article 187 prescribes that any direction, order or decree made by the Supreme Court for doing complete justice in any case, pending before it shall be enforceable throughout Pakistan. Article 189 declares that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. Finally, Article 190 directs that all executive and judicial authorities, throughout Pakistan, shall act in aid of the Supreme Court. Similarly, a High Court established under Article 175 (1) of the Constitution is to have jurisdiction throughout the terri tories of the Province concerned, and the powers exercised by it under the various clauses of Article 199 are to be available for its entire territorial juris diction. Such being the scheme of the Constitution, any exclusion of the jurisdiction of these Courts from any portions of the territories for which they have been established, must be in express and unambiguous terms, must be strictly construed, and must not be inferred by mere implication.

320. Viewed in the context of this historical background and in the light of the special provisions contained in Clauses (1) to (6) of Article 247 for the gover nance of these areas, and also keeping in mind the salutary principle that the ouster of jurisdiction of the superior Courts is not to be lightly assumed, the plain meaning and intention of clause (7) appears to me to be to exclude the jurisdiction of the Supreme Court and the High Courts only in those matters which are exclusively concerned with tribal areas. Ordinarily, these would be matters involving property and inhabitants of these areas, originating in events happening in these areas, and governed by policies, laws, customs and usages pertaining to, and obtaining in these areas. At best, the clause may be stretched to include matters arising in tribal areas, where the parties to the dispute or any of them, may not ordinarily be resident in such areas, but happen to be present therein at the time of accrual of the cause of action. In such a case it is possible to regard the matter as being in relation to a tribal area owing to the location of corpus of the dispute.

321. It is, however, clear that clause (7) cannot be interpreted so as to exclude the jurisdiction of the superior Courts in matters in which any part of the cause of action accrues, or any effective action or step is taken or performed in, or at, a place outside the tribal area, affecting the life, liberty or property of a citizen of Pakistan, or any other person for the time being in Pakistan, and having a right to be governed by the ordinary law of the land, and In accord ance with the procedures obtaining thereunder. Such a matter cannot be regarded as being in relation to a tribal area, for the simple reason that a part of the cause of action having accrued in a non‑tribal area, in which the Courts enjoy full jurisdiction, the matter would at least, to that extent, not be in rela tion to a tribal area. In other words, in my view, the jurisdiction of the Courts shall stand excluded only if the matter substantially and wholly relates to a tribal area, and not if it is only partly so, or when it is a mere colourable transaction intended as a device to attract the bar contained in clause (7), any other interpretation would make it possible for a citizen of Pakistan to be dep rived of his constitutional safeguards by being swiftly spirited away to a tribal area before he could have the means or opportunity to invoke the jurisdiction of the Courts.

322. The view that I have expressed above finds support from Sher Muluammad and 2 others v. The State P L D 1956 Lah. 1056, Dosso and another v. The State and others P L D 1957 Quetta 9., The State v. Dosso and another P L D 1958 S C (Pak.) 533, Abdul Sami Khan v. Subedar Major Hamesh Gul and another P L D 1958 Lah. 1039., Piao Gul v. The State P L D 1960 S C 307, Messrs Pakistan Industrial and Mining Syndicate v. Messrs Pakistan Industries Ltd. P L D 1961 Kar. 437, Sar Khan v. The State P L D 1967 S C 149, Abdul Ghani and another v. Subedar Shoedar Khan Company and others P L D 1968 S C 31, Jamil Ahmed and another v. The State and 5 others P L D 1969 S C 344 and The Superintendent, Land Customs, Torkham v. Zewar Khan and 2 others P L D 1969 SC 485.

323. In all these cases, the ouster of jurisdiction was strictly construed, and the High Court was held to have jurisdiction in matters ostensibly relating to, of arising in, tribal areas, if any part of the cause of action had arisen within the territorial jurisdiction of the High Court, or if any consequential action for implementing the orders of a tribal authority was taken in a non‑tribal area. These cases present a remarkable consistency of reasoning to the effect that a, person residing for the time being within the territorial jurisdiction of a High Court has the right to demand from that Court that he be treated in accord ance with law obtaining in that area, in respect of any matter arising, or action taken, in the territories of the High Court, irrespective of the fact that the authority initiating the action, or the event giving rise thereto, may be located outside the territorial jurisdiction of the High Court.

324. The learned counsel appearing for the respondents drew our attention to several decided cases in support of their submission that even if the prisoner was arrested at Lahore and detained for some time within the territorial juris diction of the Lahore High Court in the first instance, and later within that of the High Court of Sind & Baluchistan before being transported to the tribal area, the jurisdiction of these Courts stood ousted by reason of the fact that at the time of the filing of the habeas corpus petitions, the prisoner was, undoubtedly in a tribal area over which these Courts had no jurisdiction.

325. In Ryots of Garabandho and other Villages v. Zamindar of Parlakimedi and another A I R 1943 P C 164, their Lordships observed that the question of jurisdiction was to be looked at from the point of view of the substance of the matter and not its mere form. They held that the Madras High Court, exercising jurisdiction within the Presidency Town of Madras, had no power to issue writ of certiorari in respect of proceedings for settling fair and equitable rent under a local law, by the Special Officer of the District of Ganjam, for lands situated outside Madras Town, even though the final order sought to be challenged was made in revision by the Collective Board of Revenue, sitting in Madras. It will be seen that in the case before their Lordships, the land was situated outside the terri torial jurisdiction of the Court and the proceedings sought to be challenged had also been taken outside its territory. It was, in these circumstances, that the Privy Council took the view that the seat of the final authority at the apex, could not be a decisive factor for the purpose of assuming jurisdiction.

326. This view was referred to with approval by this Court in Civil Appeal No. C. A. 6‑P of 1970 (Abdur Rahim and 2 others v Home Secretary, West Pakis tan and another 1974 S C 109, decided on the 4th of December, 1973, and the Court refused to interfere with a revisional order made by the Provincial Home Secretary at Peshawar, affirming the order of the Political Agent for Dir Stare on the ground that the property in dispute was situated in lair State, and the parties to the dispute also resided there.

327. The Court, nevertheless, armed the rule earlier laid down in Pio Gul v. The State, Sar Khan v. The State, and Jamil Ahmed and another v. The State and S others, to the effect that the jurisdiction of the High Court would not be ousted under clause (5) of Article 223 of the 1952 Constitution (corres ponding to clause (7) of Article 247 of the 1973 Constitution); if the cause of action arises within the territorial jurisdiction of the High Court, as for instance, any person is arrested or detained within those territories without lawful authority. It was added that the test was the sites or the location of the corpus of the dispute. It seems to me that this decision, to which I am a party, does not in any manner detract from the consistent view previously taken by this Court in the cases already mentioned. This case, and the obser vations of the Privy Council in the case of Ryots of Garabandho and another are, therefore, no authority for the proposition that the High Court loses its jurisdiction on account of the removal of the prisoner from its territories, even though the alleged wrongful arrest first took place within those territories.

328. The case cited as Vishambhar Dayal Tripathi v. U. P. Government A I R 1945 Oudh 117, is not directly relevant in the present context, for the reason that it deals only with the express language of section 491 of the Criminal Procedure Code, which section clearly contemplates that the person alleged to be in illegal con finement should be within the appellate criminal jurisdiction of the High Court. Similarly the case of Malik Muhammad Qasim and another v. The Province of Punjab, etc. P L D 1973 Lah. 473, is not much assistance, as the learned Chief Justice confined leis attention to interpreting only clause 2 (b) (i) of Article 201 of the Interim Constitution of Pakistan, 1972, corresponding to clause 1 (b) (i) of Article 199 of the 1973 Constitution, which deals expressly with a person in custody within the territorial jurisdiction of the Court; his Lordship did not advert to examin ing the question whether any relief was possible under clause 2 (a) (ii) of Article 201 aforesaid by declaring that the act done or proceeding taken in respect of the arrest of the detenu within the territorial jurisdiction of the Court was without lawful authority.

329. As observed by this Court in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri, P L D 1969 S C 14, with reference to clause 2 (b) of Article 98 of the 1962 Constitution, corresponding to Article 199 of the present Constitution, the powers of the High Court to review the action of the detaining authority are un-trammelled by the formalities and technicalities of either sec tion 491 of the Criminal Procedure Code or the old prerogative writ of habeas corpus.

330. The question of the ouster of jurisdiction, as arising in the instant case, has to be decided on the basis of a harmonious construction of the various relevant Articles of the Constitution and not merely with reference to the language of a particular clause of Article 199 thereof taken in isolation.

331. As against the authorities cited on behalf of the respondents, Mr. Manzoor Qadir referred us to The King v. Secretary of State for Home Affairs, Ex ‑Parte O'Brien 1923 K B 361, in which the Court of Appeal directed the issuance of a writ of habeas corpus to the Home Secretary in spite of the fact that the prisoner was no longer within his reach and was confined in a prison in the Irish Free State. Having held the order of detention to be illegal, the Court ordered the writ to issue on the view that ` it may be that on hearing that in the opinion of this Court the order was issued without legal authority, the Home Secretary, with the assistance of the Irish Free State Government will produce the body as it is hardly in the interest of either Government to act illegally".

332. The note appended at the end of the report of this case makes interesting reading. It states that the writ of habeas corpus was issued on the 10 th of May 1923, requiring the Home Secretary to produce the body of O'Brien before the Court of Appeal on May 16, 1923. The body was produced on the said date and O'Brien was thereupon discharged.

333. The proceedings in this case clearly demonstrate the respect which the executive authorities concerned, both in England and Ireland, showed for the judicial opinion of the Court, and complied with its directions in spite of the fact that the detenu was, at the time of the issuing of the writ, physically beyond the jurisdiction of not only the Court but also of the Home Secretary. In the instant case, it is not denied that the tribal area in question is certainly within the jurisdiction of the executive authorities of the Federation of Pakistan and of the Province of Baluchistan. It seems to me, therefore, that, in an appropriate case, the mere fact that the detenu is for the time being outside the territorial jurisdiction of the Court, need not necessarily stand in the way of the issuance of a suitable writ, particularly in terms of clause 1 (a) (ii) of Article 199 of the Constitution, viz., a declaration that the arrest and detention was without lawful authority, and of no legal effect. I have no doubt that the executive authorities concerned are bound to respect such a declaration, as in the English case of O'Brien.

334. For all these reasons, I would hold that the ouster of jurisdiction as con templated by clause (7) of Article 247 of the Constitution comes into play only when the matter relates wholly and exclusively to a tribal area, and no part of the cause of action has accrued outside such area. Now, in the present case, the admitted facts are that the prisoner was arrested from his home at Lahore, taken to Multan, and then to Rohri in the Province of Sind, before being finally delivered to the Assistant Commissioner at Kohlu in the tribal area of Baluchistan Province. In these circumstances, the provisions of clause (7) of Article 247 of the Constitution are not attracted.

335. It was submitted by Mr. Manzoor Qadir that even if the continued deten tion of Ch. Zahoor Elahee in the tribal area be regarded as falling within the ambit of the phrase "in relation to a tribal area", as occurring in clause (7) of Article 247 of the Constitution, the jurisdiction of the Supreme Court and the High Court would be saved, firstly for the reason that the clause does not apply to the special jurisdiction enjoyed by the Supreme Court under Article 184 (3) of the Constitution for the enforcement of fundamental rights, and, secondly, by the proviso to the said clause in view of the provisions con tained in the Tribal Areas (Restoration of Jurisdiction) Act, 1964 (Act II of 1964), by which the jurisdiction of the superior Courts was restored in relation to the tribal areas of Quetta Division in the Province of Baluchistan.

336. The first part of this argument is sought to be supported by a reference to the language employed in the corresponding provisions of the 1956 and the 1962 Constitutions of the Islamic Republic of Pakistan. Both in Article 178 of the former, and in Article 223 (5) of the latter, the opening words were "notwith standing anything in the Constitution". It was contended that as these significant words were absent from clause (7) of Article 247 of the present Constitution, it could not have been the intention of the framers of the Constitution to exclude, in relation to a tribal area, the jurisdiction of the Supreme Court and the High Courts in the matter of enforcement of fundamental rights. It was also submitted that such an interpretation found support from the fact that in the Chapter dealing with fundamental rights, there was no indication that they were not to apply to residents of the tribal arias.

337. It is true that the fundamental rights, enumerated in Part II of the Consti tution, are so formulated as to be available to all the citizens of Pakistan, and many of these rights are also available to every other person for the time being within Pakistan. However, Part II of the Constitution does not itself provide any machinery for the enforcement of these rights. For this purpose we have to turn to Article 199 of the Constitution contained in Part VII dealing with "The Judicature". Clause 1 (c) of this Article gives power to the High Court to make an order for the enforcement of any of the fundamental rights. Clause (2) of the same Article prescribes that "subject to the Constitution, the right to move a High Court for the enforcement of any of the fundamental rights conferred by Chapter I of Part II shall not be abridged". A similar power is also conferred on the Supreme Court by the Constitution by clause (3) of Article 184 in cases where the Court considers that a question of public importance is involved. It would be seen, therefore that the power to enforce fundamental rights is a power specially conferred on the Supreme Court and the High Courts by the Constitution. Now, clause (7) of Article 247 prescribes that "neither the Supreme Court, nor a High Court shall exercise any jurisdic tion under the Constitution in relation to a tribal area, unless Parliament, by law otherwise provides". The words "under the Constitution" following the words "any jurisdiction" seem to me to be comprehensive enough to include the totality of jurisdiction enjoyed by these Courts under, or by virtue of, the Constitution. The framers of the present Constitution thus appear to have achieved the same object by using the phrase "no jurisdiction under the Constitution" in clause (7) as was done by prefixing the ouster clauses in the previous Constitutions by the words "notwithstanding anything in the Constitution".

338. It must however, be clarified at this stage that the Constitution itself, in Article 175 (2). makes a distinction between the jurisdiction conferred on the Courts by the Constitution, and that conferred by or under any law. The ouster of jurisdiction contemplated by clause (7) relates only to the former, In the case of the Supreme Court this would appear to comprehend its entire jurisdiction but it is not so in the case of a High Court which has jurisdiction not only in civil and criminal matters under the relevant laws, but also under other laws like the Income‑tax Act, the Sales Tax Act, the Displaced Persons (Compensation and Rehabilitation) Act, the Displaced Persons (Land Settle ment) Act, and the Rent Restriction Act and so on.

339. As a result, it follows that the special jurisdiction to enforce fundamental rights would not be available in a case to which clause (7) applies in terms.

340. I now turn to the question as to what jurisdiction of the Supreme Court and the High Courts has been saved by the proviso to clause (7) of Article 247 of the Constitution.

341. This question has come under examination on several occasions in the cases reported as Sher Muhammad and two others v. The State, Messrs Pakistan Industrial & Mining Syndicate, Karachi v. Messrs Pakistan Industries Ltd., Jamil Ahmad and another v. The State and S others and Hafiz Umar Gul and another v. Government of Pakistan. In view of the latest decision of this Court in Hafiz Umar Gul's case, which incidentally forms the subject‑matter of Civil Review Petition No. 37 of 1973, it is hardly necessary to refer, at any length, to the earlier decisions.

342. In Hafiz Umar Gul's case, the question before the Court concerned the availability of the writ jurisdiction of the former High Court of West Pakistan (Peshawar Beach) in the tribal territories of lair on the 24th of September 1963. After examining the previous decisions on the subject and anaylsing the relevant provisions of the Establishment of West Pakistan Act, 1955, and its amendments, Article 178 of the 1956 Constitution, the Laws (Continuance in Force) Order, 1958, President's Order No. 11 of 1961 and Articles 223 (1), 223 (5) and 225 (1) of the 1962 Constitution, Sajjad Ahmad J., who delivered the leading judgment in the case, expressed the view that the writ jurisdiction was not available for the reason that President's Order No. II of 1961 did not have the effect of restoring writ jurisdiction of the High Court in rela tion to tribal areas; and that in any case, this order ceased to be operative after the enforcement of the 1962 Constitution as the President did not give any direction with regard to its application to the tribal areas in terms of Article 223 (1) of that Constitution. His Lordship further held that after the insertion of clause (5) in Article 223 of the 1962 Constitution by the Constitution (First Amendment) Act, 1963 (Act I of 1964) with effect from the 10th January 1964, the jurisdiction of the Supreme Court and High Court was excluded in relation to tribal areas, and this exclusion applied in the case before the Court for the reason that the writ petition had not been admitted by the High Court by that date.

343. His Lordship the Chief Justice and Salahuddin Ahmed, J. agreed with Sajjad Ahmad, J., except that they took the view that the President's Order No. 11 of 1961 had restored even the writ jurisdiction of the High Court, although it ceased to be operative with effect from the 8th of June 1962, for want of an express direction by the President under clause (1) of Article 223 of that Constitution.

344. In separate dissenting notes, Muhammad Yaqoob Ali and Waheeduddin Ahmad, JJ., took a contrary view, and held that although the writ jurisdiction of the High Court of West Pakistan, in relation to tribal areas or special areas, as they were then called, was taken away by an amendment introduced in section 7 (1) of the Establishment of West Pakistan Act, 1955, by the Amending Act of that year, and Article 178 of the 1956 Constitution, yet the same was restored by President's Order 11 of 1961; and that this order was an existing law within the meaning of clause (7) of Article 225 of the 1962 Constitution, and therefore, it continued in force without requiring any direction of the President under Article 223 (1) of that Constitution. As a result, the learned Judges reached the conclusion that on the day of the filing of the writ petition by Hafiz Umar Gul, namely, the 24th of September 1963, writ jurisdiction of the High Court of West Pakistan was available in relation to the tribal area of Dir, and it was taken away only by the addition of clause (5) to Article 223 of the 1962 Constitution with effect from the 10th of January 1964.

345. The learned Judges of the High Court of Sind & Baluchistan have taken due note of this decision, but have observed that a material difference has been made by the Tribal Areas Restoration of Jurisdiction Act, 1964 (Act II of 1964), promulgated on the 10th of April 1964 but given restros pective effect from the 10th of January 1964 on which date clause (5) was added to Article 223 of the 1962 Constitution by the Constitution (First Amendment) Act. According to the learned Judges this Act was specially enacted by the Central Legislature in terms of clause (5) of Article 223 to restore the jurisdiction of the Supreme Court and the High Court in relation to the tribal areas of the Quetta Division, as was exerciseable by them before the commencement of the Constitution (First Amendment) Act, 1963 and did not, therefore, require to be specially extended to the tribal areas concerned in terms of clause (1) of the said Article. They have further observed that the jurisdiction so restored has been preserved successively by the proviso to clause (7) of Article 261 of the 1972 Interim Constitution and by the proviso to clause (7) of Article 247 of the 1973 Constitution.

346. Speaking with respect, it is not possible to agree with Sajjad Ahmad, J., that President's Order No. 11 of 1961 did not have the effect of restoring the writ jurisdiction of the High Court of West Pakistan in relation to tribal areas.

347. Section 7 (1) of the Establishment of West Pakistan Act, as originally enacted, provided that the High Court of West Pakistan shall exercise jurisdiction in relation to the whole of the Province of West Pakistan, and exercise the same powers and authority as was exerciseable by the High Court in Lahore, and section 223 of the Government of India Act, 1935, shall be construed accordingly. The same provision was embodied in paragraph 3 of the High Court of West Pakistan (Establishment) Order, 1955 (Governor-General's Order No. 19 of 1955). As a result, not only the ordinary jurisdiction of the High Court of West Pakistan, but also its writ jurisdiction stood extended to the whole of the Province, including tribal areas.

348. However, this jurisdiction was taken away by the Establishment of West Pakistan (Amendment) Act, 1955, which inserted the words "except the special areas" in section 7 (1) of the Act, with retrospective effect from the 14th of October 1955. This amendment was followed by the 1956 Constitu tion. By Article 22 special original jurisdiction was conferred on the Supreme Court for the enforcement of fundamental rights, but by clause (4) thereof the application of this power was excluded from the Special Areas. Again, Article 178 of that Constitution excluded the jurisdiction of the Supreme Court and the High Court in relation to special areas, unless Parliament by law provided otherwise. As a result the position which emerged was that the Supreme Court and the High Court of West Pakistan ceased to have any jurisdiction at all in tribal areas, whereas prior to 1955, the Chief Commissioner's Court in the N. W. F. P. and the Judicial Commissioner in Baluchistan had enjoyed appellate and revisional jurisdiction in civil and criminal matters pertaining to these areas.

349. President's Order 11 of 1961 was promulgated to remove the difficulty so created, and it contemplated by Article 2 thereof that "The Supreme Court and the High Court of West Pakistan shall exercise in relation to the territories in the special areas or any part thereof the same jurisdiction as would have been exerciseable by them on the 14th day of October 1955, if sub‑clause (1) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act, 1955, and Article 178 of the Constitution of the 23rd day of March 1956, had not been enacted." Article 6 of the same. Order added a rider to the effect that "nothing in this Order shall operate to confer on the High Court or the Supreme Court any jurisdiction not conferred by the Laws (Continuance in Force) Order, 1958". The combined effect of these provisions was clearly to restore the jurisdiction of the Supreme Court and the High Court of West Pakistan as it existed prior to the promulgation of the Establishment of West Pakistan (Amendment) Act, 1955. That jurisdic tion included powers under section 223 of the Government of India Act, 1935, and later writ jurisdiction under Article 170 of the 1956 Constitution. I would, therefore, respectfully agree with the opinion expressed by my lord the Chief Justice as well as by my learned brothers Muhammad Yaqoob Ali, Waheeduddin Ahmad and Salahuddin Ahmed, JJ. to the effect that President's Order 11 of 1961 had the effect of restoring not only the ordinary civil and criminal jurisdiction of the High Court in relation to trial areas but also its writ jurisdiction.

350. As the then President of Pakistan, who was also the Chief Martial Law Administrator, had assumed all the Constitution‑making and legislative powers of the Federal Parliament, under the abrogated 1956 Constitution read with Laws (Continuance in Force) Order, 1958, President's Order 11 of 1961 must be regarded as being in the nature of a Constitutional amendment; nullifying the bar of jurisdiction created by Article 178. In the alternative, it could be deemed to be a law made under Article 178 of the 1956 Constitu tion, and accordingly no further direction was necessary under Article 104 of that Constitution, to apply this Order to the special areas, as the tribal areas were then called. It is clear that the direction contemplated by Article 104(1) was in respect of Central or Provincial Laws which had not been made specifically for the special areas, but it was deemed expedient or necessary to extend them to these areas. In the very scheme of things no such special direction could be required for a law specifically made for these areas.

351. This then was the state of the law when the 1962 Constitution was enforced on the 8th of June 1962. Under Article 98 of that Constitution, High Courts were given powers of judicial review in relation to the territories of the Provinces for which they were established. In accordance with the definition given in Article 242 thereof, the tribal areas meant the areas in the Province of West Pakistan, which on the 13th day of October 1955 were the tribal areas of Baluchistan, the Punjab and the North‑West Frontier, and the States of Amb, Chitral, Dir and Swat. There being no territorial restriction on the extent of the constitutional jurisdiction conferred on the Supreme Court and the High Courts by the 1962 Constitution, as originally enacted and enforced, it follows that such jurisdiction was available even in relation to tribal areas of West Pakistan with effect from the 8th of June 1962. And, for this purpose, it was not necessary to invoke the aid of President's Order 11 of 1961. On this view of the matter it seems to me that the writ jurisdiction of the High Court was available to Hafiz Umar Gul on the date he filed his petition namely, 23rd of September 1963, even without the aid of President's Order 11 of 1961. It was therefore, perhaps not necessary to examine the question whether this Order continued to remain in force after the promulgation of the 1962 Constitution.

352. However, President's Order No. 11 of 1961 was indeed an existing law according to clause (7) of Article 225 of the 1962 Constitution, which defined existing laws as meaning "all laws" (including Ordinances, Orders.. . .)enforced in Pakistan or any part of Pakistan, or having extra‑territorial validity immediately before the commencing day". It was therefore, kept alive under clause (1) of Article 225 which laid down that "except a provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations unless altered, repealed or amended by the appropriate Legislature".

353. The object underlying this provision was clearly to ensure continuity o the operation of the legal structure, which was in existence in Pakistan, immediately before the commencing day. The expression "subject to this Constitution", used in the said clause, could not mean a re‑enactment or re‑application of the existing laws in accordance with the provisions of the new Constitution. Such an interpretation was bound to create a legal vacuum, thus defeating the very object which this provision was designed to achieve. In my view, this expression or qualification was intended solely to eliminate any possibility of conflict or contradiction between the existing law and the new Constitution. To the extent of such inconsistency, the existing laws would inevitably cease to operate. It may be mentioned that it was stated at the Bar that no direction for the re‑application of existing Central or Provincial laws had been given under clause (1) of Article 223 of the 1962 Constitution in relation to tribal areas or under the corresponding provisions in the 1972 Interim Constitution or the 1973 Permanent Constitution.

354. Apart from being an existing law, President's Order No. 11 of 1961 did not specifically require to be extended to the tribal areas under clause (1) of Article 223 of the 1962 Constitution, for the reasons which I have already mentioned in relation to Article 104 (1) of the 1956 Constitution. The Constitution gave power to the President or the Governor as the case may be, to extend Central or Provincial laws to the tribal areas, as and when necessary, but there could be no question of any such extension in the case of a law specifically made for the tribal areas, as in such a case the authority concerned had already applied its mind to the need for such a law in regard to the areas concerned, and also because such a law could have no other application at all.

355. As a result it has to be held, that‑

(a) the ordinary as well as the extraordinary jurisdiction of the Supreme Court and the High Courts stood restored by the President', Order No. 11 of 1961 ;

(6) this order continued to be operative even after the enforcement of the 1962 Constitution as an existing law ; and

(c) that in any case, it was unnecessary to invoke the aid of this Order in Hafiz Umar Gul's case, as there was no territorial limitation on the exercise of the jurisdiction conferred on the Supreme Court and the High Courts by the 1962 Constitution, before its amendment by Act 1 of 1964, promulgated on the 10th of January 1964.

356. To this extent, therefore, the decision in Hafiz Umar Gulls case needs to be reviewed.

357. It has been rightly pointed out, if I may say so with respect, by the learned Chief Justice and the learned authors of the dissenting notes in that case, that the bar of jurisdiction created by the newly added clause (5) of Article 223 of the 1962 Constitution, in relation to tribal areas, had no retrospective application to matters already pending in the Courts on the date pf its promulgation. However, this matter is now only of as academic Interest In view of the promulgation of the Supreme Court and High Courts (Extension of Jurisdiction to Certain Tribal Areas) Act, 1973 (Act XXVII of 1973), by which the jurisdiction of these Courts has been restored in relation to the areas comprised in the former States of Chitral, Dir, Swat and Malakand Protected Area.

358. To continue with subsequent developments in this field, we find that by the Constitution (First Amendment) Act, 1963 (Act I of 1964), promulgated on the 10th of January 1964, the fundamental rights enumerated in Chapter I of Part II of the 1962 Constitution were made justiciable and a new sub‑clause (c) was added to clause (2) of Article 98 of the Constitution, so as to enable the High Court to enforce these rights. At the same time, a new clause (5) was added to Article 223 of the Constitution, enjoining that "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". The effect of this provision was not only to deny to the tribal areas the newly conferred benefit of the justiciability of fundamental rights, but also to deprive them of the previously existing Constitutional jurisdiction of the Supreme Court and the High Courts under the unamended 1962 Constitution.

359. This situation was, however, soon remedied, in relation to the tribal areas of Quetta Division in Baluchistan, by the promulgation of the Tribal Areas (Restoration of Jurisdiction) Act, 1964 (Act II of 1964), on the 10th of April 1964, with retrospective effect from the 10th day of January 1964, i.e. the date on which clause (5) was added to Article 223 of the Constitution. Section 2 of this Act provided that "The Supreme Court and the High Court of West Pakistan, shall exercise in relation to the tribal areas of the Quetta Division, the same jurisdiction as was exerciseable by them in relation to those areas before the commencement of the Constitution (First Amendment) Act, 1963 (Act I of 1964)". Section 3 of this Act made certain provisions in regard to limitation, with which we are not concerned in the present case.

360. It is clear that Act II of 1964 was a law made by the Central Legislature in terms of clause (5) of Article 223 of the Constitution then in force. For this reason it did not require any specific direction of the President, in terms of clause (1) of the said Article, for its application to tribal areas. Its effect was to restore not only the civil and criminal jurisdiction of the High Court, but also the extraordinary jurisdiction as conferred by Article 98 of the R 1962 Constitution, as that Article stood before its amendment by Act I of 1964. As a necessary consequence, the appellate jurisdiction of the Supreme Court in all these matters also stood restored according to the terms of the Constitution. However, it appears that the jurisdiction restored by Act 11 of 1964 did not include the jurisdiction to enforce fundamental rights, as no such jurisdiction existed before the commencement of Act I of 1964.

361. This restoration of jurisdiction remained untouched when the 1962 Constitution was abrogated in 1969, and the powers of the Courts were kept intact subject to certain qualifications by the Provisional Constitution Order, 1969. The proviso to clause (7) of Article 261 of the 1972 Interim Constitution preserved the jurisdiction which the Supreme Court or the High Courts exercised in relation to tribal areas immediately before the commencing day. The same provision has been repeated in the proviso to clause (7) of Article 247 of the 1973 Permanent Constitution. The result of these provisions has been to preserve not only the Ordinary Civil and criminal jurisdiction of the High Court in relation to the tribal areas of Quetta division in the Province of Baluchistan, but also the constitutional jurisdiction of the Supreme Court and the High Court in relation to these areas, as was exerciseable under the 1962 Constitution before its amendment by Act I of 1964 with effect from the 10th of January, 1964.

362. Although I have reached the conclusion that the jurisdiction of the Supreme Court and the High Court in relation to tribal areas of the Quetta Division, as saved by the proviso to clause (7) of Article 247 of the Constitution, does not include the jurisdiction to enforce fundamental rights in relation to S these areas, yet this conclusion has no effect on the present case, for the reason that it is not hit by the bar of jurisdiction contained in clause (7) itself, as the prisoner was arrested from a place outside the tribal area. Such being the case the proviso to clause (7) is also not attracted.

363. We may now proceed to consider whether this is a fit case for being dealt with by this Court under the special jurisdiction conferred on it by clause (3) of Article 184 of the Constitution. This clause provides that "without pre judice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."

364. It will be noticed that although the power conferred on the Supreme Court is co‑terminus with that enjoyed by the High Courts under Article 199 of the Constitution, yet it has been made subject to two limitations, namely:

(a) that the case must involve a question of public importance; and

(b) that the question must be with reference to the enforcement of any of the fundamental rights, guaranteed by the Constitution.

365. The Supreme Court can act only if both these elements are present however, even then it may stay its bands if it finds that sufficient justification has not been shown for not invoking the concurrent, and wider, jurisdiction of the High Court concerned, it being au established principle of the exercise of judicial power that ordinarily, in matters of concurrent jurisdiction, the lowest Court or tribunal must be approached in the first instance.

366. Now, what is meant by a question of public importance. The term "public" is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to, or belonging to, the people; relating to a nation, state, or community. In other words, it refers to something which is to be shared or participated in or enjoyed by the public at large, and is not limited or restricted to any particular class of the community. As observed by the Judicial Committee of the Privy Council in Hamabai Framjee Petit. v. Secretary of State for India‑in‑Council I L R 39 Bom. 279. while construing the words public purpose such a phrase, whatever else it may mean must include a purpose, that is an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned". This definition appears to me to be equally applicable to the phrase "public importance."

367. The learned Attorney‑General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must obviously raise a question which is of interest to, or affects, the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject‑matter of the case, may be of no particular consequence.

368. Seen in this light, there can be little doubt as to the public importance of the questions arising in this case. I think I will not be far wrong in saying that it is not often that a single case raises so many questions of public importance touching the liberty of the citizen. In all systems of law which cherish individual freedom and liberty, and which provide constitutional safeguards and guarantees in this behalf, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance.

369. While delivering judgment in the House of Lords in The Rev. James Bell Cox (Clerk) v. James Hekes and (by order) The Right Hon. James Plaisted Baron Penzance 15 A C 506 involving a question regarding the maintainability of an appeal before the Court of Appeal against the judgment of the Queen's Bench Division in a habeas corpus matter, Lord Halsbury L. C., opened his address with the following remake:

370. "My Lords, probably no more important or serious question has ever come before your Lordships' House. For a period extending as far back as our legal history, the writ of habeas corpus has been regarded as one of the most important safeguards of the liberty of the subject."

371. In the same case Lord Herschell observed:

372. "My Lords, the preliminary question argued upon the hearing of this appeal is one of great importance. It touches closely tile liberty of the subject, and the protection afforded by discharge from custody under a writ of habeas corpus. The law of this country has been very jealous of any infringement of personal liberty, and a great safeguard against it has been provided by the manner in which the Courts have exercised their jurisdiction to discharge under a writ of habeas corpus those detained unlawfully in custody."

373. These observations of the British House of Lords have a direct bearing under the system of law and the constitutional pattern which we have chosen to adopt in Pakistan. In the case before us, several important questions touching the jurisdiction of the superior Courts in the matter of liberty of the subject are involved. These questions have already been listed by me in an earlier part of this judgment, and need not therefore, be repeated here in detail. It will be sufficient to recall that the prisoner was unable to obtain any relief from the Lahore High Court, although he was arrested from his home in Lahore. Even when the Sind & Baluchistan High Court was approached on his behalf, the executive authorities questioned the territorial jurisdiction of that Court on the ground that the prisoner had by that time been removed to a tribal area. In these circumstances, it is of the utmost importance to the public that the question of the jurisdiction of the Supreme Court and the High Courts in cases of this kind be authoritatively settled by this court.

374. Apart from this vexed question of territorial jurisdiction in relation to tribal areas, this case also raises questions regarding the interpretation of several provisions of the past and present Constitutions of Pakistan, in regard to the meaning and content to be given to certain fundamental rights, and the power of the Courts to grant relief in respect thereof during the continu ance of the Proclamation of Emergency, suspending the right of the citizen to enforce certain specified rights.

375. Added to all these factors, is, of course, the circumstance that this is the first time that the original jurisdiction conferred on the Supreme Court by clause (3) of Article 184 has been invoked. For this reason as well, the present case acquires public importance with reference to the enforcement of fundamental rights conferred by the Constitution.

376. According to Mr. Manzoor Qadir, the manner in which the prisoner has been arrested and taken to a tribal area has resulted in a violation of the provisions contained in Article 4 of the Constitution, as well as of funda mental rights embodied in Articles 9 and 10 thereof. It will be useful to reproduce these Articles here for facility of reference:

377. "4,‑(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.

9. No person shall be deprived of life or liberty save in accordance with law.

378. 10.‑(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal prac titioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty‑four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.

(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies of services and no such law shall authorise the detention of a person for a period exceeding one month, unless the appropriate Review Board Las, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion sufficient cause for such detention, and, if the detention is continued after the said period of one month, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention."

379. While Article 4 embodies provisions of the utmost importance to the individual in the matter of his life, liberty, body, reputation and property, hi right to freedom of action, and immunity from illegal restraint of any kind, yet it does not form part of Part 11 of the Constitution containing fundamental rights, and, for that reason any violation of this Article would not bring the case within the four corners of the jurisdiction conferred on the Supreme Court by clause (3) of Article 184 of the Constitution. That jurisdiction has reference only to the enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution. Nevertheless, it is clear at the same time that the High Court, acting under the various clauses of Article 199 of the Constitution would be fully competent to deal with a case involving a violation of the provisions of Article 4 of the Constitution. In the case of Agha Shorish Kashmiri to which reference has already been made by me in another context, the wide scope of the jurisdiction conferred on the High Courts by Article 98 of the 1962 Constitution, corresponding to Article 201 of the 1972 Interim Constitution, and Article 199 of the present permanent Constitution, has been fully explained by this Court. In the same case, the full implications of Article 2 of the 1962 Constitution, corresponding to Article 4 of the present Constitution, have also been brought out. This is therefore, a matter which must be left to be dealt with by the High Court of Sind & Baluchistan in the petition which is still pending there.

380. Article 9 of the Constitution, forming part of the Chapter on Fundamental Rights, is narrower in scope than Article 4 of the Constitution, as it deals only with the security of person, as opposed to many other matters dealt with in Article 4; yet, in content, as regards the subject with which it deals, it carries the same meaning and substance is Article is comparable to Article 21 of the Indian Constitution, Article 40 (4) of the Irish Constitution of 193. Section 16 of the Constitution of the Union of Burma (1948), as well as to the 5th and the 14th amendments to the Constitution of the United, States of America.

381. These comparable articles have received interpretation in a large number of cases in their respective countries, which it is not necessary to recapitulate here, except to point out that the main controversy has been with regard to the meaning of the term `law'. In the well known case of A. K. Gopalan v. State of Madras AIR 1950 S C 27, the majority of the learned Judge took the view that the phrase "procedure established by law must be taken to refer to a procedure which has a constitutional origin, for no procedure is known or can be said to have been established by such vague and uncertain concepts as the immutable and universal principles of natural justice". According to the learned Judges, "the word "established" was significant and was not simply used synonymous with prescribed". It was accordingly, construed to connote an enacted law and no law in the abstract of the principles of natural justice". A similar view was taken by the Supreme Court of Burma in Tinsa Maw Naing v. Com missioner of Police, Rangoon 1950 Burma L R S C 17. In some cases in Ireland, the same restricted view was adopted, e.g. in R (D' Connell) v. Military Governor of Hare Park Camp (1914) 2 I R 104.

382. It seems to me that the limited construction placed by the Indian Supreme Court on the word "law" occurring in Article 21 of the Indian Constitution, was dictated mainly by the peculiar words of that Article, namely:‑

383. "No person shall be deprived of his life or personal liberty, except according to the procedure established by law."

384. Another factor forming the background of the Indian decision appears to be that at the time of the framing of the Constitution, the American phrase "due process of law" was consciously and deliberately rejected by the Indian Parliament in favour of the phrase "procedure established by law" Article 9 of our Constitution is not inhibited by any such restriction, and does not, therefore, justify a limited interpretation.

385. The decision of the Supreme Court of Burma proceeded on the basis that in that country, before the framing of the Constitution, the term "law had been used only in the sense of enacted law, and therefore, the framers of the Constitution must have used it in the same sense in section 16 thereof. The learned Judges observed that the Customary Laws, the Common Law of England and the principles of justice, equity and good conscience, were not applied by their inherent force in Burma, but were made applicable by an enactment as was clear from the provisions of section 13 of the Burma Laws Act, 1898.

386. The Irish decisions have been criticised by writers on Constitutional law as having the effect of refusing Constitutional protection to the citizen against encroachment on his personal liberty by the Legislature. Kelley has remarked, on page 56 of his Book "Fundamental Rights in Irish Law and Constitution" that "naturally the most important and controversial element in these guarantees has been the meaning of the word "law", and the Irish Judges in successive decisions allowed the word to bear a meaning such as largely to destroy the immunity of personal liberty from in‑roads by the Legislature".

387. However, in the United States, the expression "due process of law" has received a broad and purposeful interpretation. The definition given bar David Webster in Dartmouth College case (1819) 4 Wheaton (U S) 518 has been most frequently quoted and approved by the Courts. According to Webster "by the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered as the law of the land".

388. In Hagar v. Reclamation Dist. (1884) 111 (U S) 701 the Supreme Court elaborated the concept further as follows ‑‑‑

389. "By due process of law is meant one which following the forms of law, is appropriate to the case and just to the parties to be affected. It must be pursued in the ordinary modes prescribed by law, it must be adapted to the end to be attained, and whenever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justness of the judgment sought. The clause, therefore, means that there can be no proceedings against life, liberty or property which may result in deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights."

390. In the case of Agha Shorish Kashmiri, already referred to, this Court has, in no uncertain terms, observed that the guarantee contained in Articles 2 of the 1962 Constitution, comparable to Articles 4 and 9 of the present Constitution, is as comprehensive as the American due process clause. It will be profitable to reproduce here the relevant observations appearing in the judgment of the Court delivered by Hamoodur Rahman, J. (as his Lordship then was):

391. "The words "in an unlawful manner" in sub‑clause (b) of Article 98(2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining as to how and in what circumstances a 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 is also 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."

392. It is interesting to observe that clause (1) of Article 8 of the Constitution declares that:-

393. "Any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void."

394. In other words, the Constitution itself gives to the word "law", a content and meaning wider than enacted law, and enjoins that even a custom or usage having the force of law shall be void to the extent of its inconsistency with fundamental rights. By a process of converse reasoning, it would appear to follow that if an enacted law violates the established and accepted juridical norms, affecting the rights of the citizens, then to that extent it would not be a valid law.

395. The Constitution, as has been rightly said, is a living and dynamic instrument, and is not to be reduced to a mere collection of political doctrines. Every word and phrase used therein must receive a liberal and purposeful construction, so that no part is rendered meaningless and inoperative. Nothing was said at the Bar during the course of arguments in this case, which could persuade the Court to depart from the view already taken in Agha Shorish Kashmiri's case.

396. It appears to me, therefore, that the injunction of the Constitution, as embodied in Article 9, requires the Court to ensure that‑

(a) the deprivation of life or liberty of a person is under, and in accordance with, law; and

(b) that the law in question is a valid law in terms of the Constitution as well as the accepted forms of legal process obtaining in the country.

397. If the law violates accepted legal and juridical norms, it would be repugnant to Article 9 of the Constitution, even though it may have been enacted by a competent Legislature.

398. From the facts already narrated regarding the arrest of the prisoner, it will be seen that there are two distinct phases to be considered‑

(a) the circumstances surrounding his arrest from his home in Lahore and subsequent removal to Kohlu in the tribal area; and

(b) his detention at Kohlu as an under-trial prisoner and his proposed trial under the provisions of the Frontier Crimes Regulation on a reference having been made in this behalf by the Assistant Commis sioner/Additional District Magistrate, Kohlu.

399. As regards the first phase, it is clear that there has been violation of the provisions embodied in sections 85 and 86 of the Code of Criminal Procedure. In the first place, the genuineness and authenticity of the warrant of arrest produced by the police officers at the insistence of the prisoner is not free from doubt. However, I would not like to express a final opinion on this point for the reason that the matter requires further inquiry. Assuming that a genuine warrant of arrest was in existence, that it had been endorsed by the issuing Court to the District Magistrate of Lahore for execution, and that the District Magistrate, Lahore, had made an endorse ment thereon authorising the arrest of the prisoner, then it was incumbent, under section 85 of the Code, on the police officers making the arrest, to take the prisoner before the District Magistrate, so that he could pass the necessary order, under section 86 of the Code, for the prisoner's removal in custody to the issuing Court on being satisfied that the person arrested appeared to be the person intended by the Court which issued the warrant. Subsection (1) of section 86 further provides that the District Magistrate could release the person on bail if the offence was bailable, or if a direction had been endorsed, under section 76, on the warrant that such person be released on bail.

400. From the papers produced before us, it did not appear that the procedure embodied in sections 85 and 86 of the Code of Criminal Procedure had been followed in this case inasmuch as there was no indication that the prisoner had been produced before the District Magistrate of Lahore, prior to his removal to the tribal area. The District Magistrate of Lahore, clearly acted illegally in authorising the removal of the prisoner without the latter's personal appearance before him as required by section 86 of the Code. It must be remembered that every provision of the statute has a meaning and a purpose. If the prisoner had been produced in person before the District Magistrate of Lahore, prior to his removal in custody to the tribal area, the prisoner might have been in a position to satisfy the District Magistrate, Lahore, that his removal ought not to be authorised for one reason or the other. As it is, this opportunity was denied to the prisoner, in violation of the relevant provisions of the statute.

401. The object underlying section 86 of the Code has been placed beyond doubt by the enactment of a new section 86‑A, by the Law Reforms Ordinance (Ordinance III of 1972), in the following terms:-

402. "86‑A. Procedure for removal in custody to Tribal Area.‑Where a person arrested under section 85 is to be removed in custody to any place in the tribal areas, he shall be produced before a Judicial Magistrate within the local limits of whose jurisdiction the arrest was made, and such Magistrate in directing the removal shall hear the case in the same manner and have the same jurisdiction and powers, as nearly as may be, including the power to order the production of evidence, as if the person arrested were charged with an offence committed within the jurisdiction of such Judicial Magistrate; and such Magistrate shall direct the removal of the arrested person in custody if he is satisfied that the evidence produced before him raises a strong or probable presumption that the person arrested committed the offence mentioned in the warrant."

403. It is true that this section has not yet been enforced, but its provisions do help in understanding the object underlying section 86 of the Code. The learned Advocate‑General, Punjab frankly conceded that the provisions of section 86 not having been complied with by the District Magistrate, Lahore, before ordering the removal of the prisoner to the tribal area, this order suffered from an illegality.

404. There also appears to have been a violation of Article 10(2) of the Constitution, as there is no averment that the prisoner was produced before a Magistrate within a period of 24 hours of his arrest. It was observed in Basal Ahmad Ayyubi v. The West Pakistan Province P L D 1957 Lah. 388 in relation to the comparable Article 7 of the 1956 Constitution, that these provisions applied equally irrespective of the fact that the arrest was made with or without a warrant.

405. It was, however, contended by the learned Advocate‑General, Punjab that even though the prisoner was arrested in an unlawful manner, yet this illegality had no bearing on his continued detention as an under-trial prisoner in the tribal area, as a proper remand order had been made by the Assistant Commissioner/Additional District Magistrate, Kohlu on 15‑11‑1973, and an order had also been made on 17‑11‑1973 under section 11 of the Frontier Crimes Regulation, 1901 referring the prisoner's case for trial to a Council‑of‑Elders. It was submitted by Mr. M. B. Zaman that the present detention being lawful, the Court would not be justified in making any order for the release of the prisoner merely on the basis of the initial illegality attaching to his arrest and removal from Lahore. In support of this submission, the learned Advocate‑General placed reliance on Parbhu v. Emperor A I R 1944 F C 73, Bank of Commerce Ltd., Khulna v. Amulyer Krishna Basu Roy Choudhry A I R 1944 F C 18, Arbab Abdul Ghafoor Khan v. Abdul Wall Khan P L D 1954 F C 1 and Commander M. S. K. Ibrat v. The Commander-In- Chief, Royal Pakistan Navy and others P L D 1956 S C (Pak.) 264.

406. In view of the comprehensive discussion of the question in the last mentioned case of Commander M. S. K. Ibrat, it is not necessary to refer to the earlier cases, some of which have, in any case, been noticed in this judgment. It was contended before their Lordships that the prisoner having been arrested in an unauthorised manner by the Naval authorities, his detention and trial by a Naval Court Martial, were thereby rendered illegal and without jurisdiction. Muhammad Munir, C. J., repelling this contention, observed that: "the mere fact that a person has been arrested in an unauthorised manner does not, generally, affect the jurisdiction of the Tribunal before which he is brought for trial."

407. In reaching this conclusion, his Lordship referred with approval to the dictum in Ex Parte Susanna Scott (1829) 9 B & C 446, The Queen v. Nelson and Brand (Charge to the Grand Jury, II Edn., p. 118), Emperor v. Vinayak Damodar Savarkar and others I L R 35 Bom. 225 and Parbhu v. Emperor.

408. Respectfully following the principle enunciated by this Court in Commander Ibrat's case I would hold that even though the prisoner in this case was illegally arrested and removed from Lahore in violation of the statutory provisions contained in sections 85 and 86 of the Code of Criminal Procedure, Yet we would not be justified in ordering his release merely on that ground alone, if we find that at the time of invoking the jurisdiction of this Court, or of the High Court of Sind & Baluchistan, he was being held in accordance with law as an under-trial prisoner at Kohlu. On the question whether, on the authority of the English cases noticed by Muhammad Munir, C. J., the prisoner would be entitled to proceed against those responsible for his illegal arrest and removal from Lahore, I express no opinion.

409. It now becomes necessary to examine whether the prisoner was being held in accordance with law as an under-trial prisoner in the tribal area. As already stated, Ch. Zahoor Elahi has been charged by the Tribal Authorities with offences punishable under sections 120‑B, 121, 121‑A and 122 of the Pakistan Penal Code. If the charges have not been preferred, or fabricated, in a male fide manner as alleged by the petitioner before us, then it is clear that the prisoner ought to be tried in accordance with law. The question is whether the reference made by the Assistant Commissioner/Additional District Magistrate, Kohlu, under section 11 of the Frontier Crimes Regulation for the prisoner's trial by a Council‑of‑Elders fulfils this requirement.

410. There has been considerable discussion at the bar as to whether the Frontier Crimes Regulation, 1901, is still alive and applicable in the tribal areas of the Quetta Division of Baluchistan Province As already stated, the High Court of Sind & Baluchistan is seized of this question, and has reserved it for consideration at the time of the hearing of the constitution petition on merits. In these circumstances, I do not propose to examine this question here, and will proceed on the assumption that the Frontier Crimes Regulation, is applicable to the tribal area of Kohlu.

411. It was submitted by Mr. Manzoor Qadir that the Frontier Crimes Regulation, 1901, cannot be regarded as law within the meaning of that term as used in Article 9 of the Constitution, for the reason that it offends against all accepted legal principles concerning criminal trials, as obtaining in Pakistan under the Code of Criminal Procedure, the Evidence Act, and judicial pronouncements regarding the rights of accused persons to a fair trial and defence by a counsel of their own choice. It was contended that section 11 of the F. C. R. gave unfettered discretion to the Deputy Commissioner concerned to arbitrarily withdraw any case from the domain of the ordinary criminal law of the land. It was next submitted that the concept of the Council‑of‑Elders was essentially related to the tribal customs prevailing in the area concerned; and that it could have no application to an accused person who did not belong to any of the tribes inhabiting Baluchistan. In his case, there could be no Council‑of‑Elders, belonging to, or drawn from his community or fraternity, with the result that he would he at the mercy of Elders who knew nothing about the concepts of law and justice which obtained in his area and to which he was entitled under the Constitution of Pakistan. Finally, it was submitted by the learned counsel that the procedure sanctioned by the F. C. R violated an essential principle of a fair criminal trial by permitting the Council‑of- Elders to collect information or evidence in the absence of the accused.

412. The question of the vires of the 'Frontier Crimes Regulation, 1901, has been examined on several occasions since the introduction of Fundamental Rights in Pakistan under the first Constitution of 1956. In Malik Toti Khan etc. v. The District Magistrate, Sibi and Ziarat P L D 1957 Quetta 1 a Division Bench of the High Court struck down several sections of the Regulation, including section 11 as being repugnant to the equality clause embodied in Article 5 of the 1956 Constitution, on the ground that there was no reasonable classification of persons whose cases might be referred to a Jirga, and the executive authorities were given an unfettered discretion in the choice of persons belonging even to Baloch or Pathan tribes, as to whether their cases should go to a regular Court of law or a Jirga. It was observed further that there was no guiding principle by which the discretion of the executive authorities as regards the choice of forum was to be regulated. The learned Judges expressed the opinion that "a person whose case has been referred to a Jirga for trial is deprived of the ordinary methods of defence available to a person tried for an offence by a regular Court of law. Although in certain instances, for example, in a murder case he may receive a lower punishment than might be inflicted by a Sessions Judge, yet the process by which the final result is arrived at may be 'highly prejudicial to an accused person in a Jirga trial when judged in the light of accepted canons of a fair trial . . . . ."

413. This opinion was reaffirmed by other Benches of the High Court of West Pakistan in cases reported as Dosso v. The State and another P L D 1957 Quetta, Khan Abdul Akbar Khan v. The Deputy Commissioner of Peshawar P L D 1957 Pesh. 100, Abdur Rauf v. The N. W. F. P. Government P L D 1958 Pesh. 73 and Muhammad Bashir v. The Province of West Pakistan P L D 1958 Lah. 853. A contrary view was taken in Abdul Baqi Baloch v. The Supdt., Central Prison, Machh P L D 1957 Kar. 694 and Malik Bahram Khan v. State P L D 1957 Kar. 709 but these Judgments were dissented from, in the case reported as Mir Akbar v. Political Agent P L D 1958 Quetta 12. The view earlier expressed in Malik Toti Khan's case was reiterated.

414. The same question came up for examination before the Supreme Court in The State v. Dosso. Three of the four learned Judges, who heard this case, expressed the opinion that in consequence of the abrogation of the 1956 Constitution, the writs had abated and they did not, therefore, consider it necessary to discuss the question of inconsistency of the Frontier Crimes Regulation with the fundamental rights incorporated in that Constitu tion. Cornelius, J., as his Lordship then was, however, reached the conclusion that the writs had not abated and consequently should not be recalled, unless it was necessary to do so on other grounds. He further came to the conclusion that sections 8, 10 and 11 of the Regulation were not repugnant to Article 5 of the 1956 Constitution. His Lordship observed that although the provisions of the Regulation were materially different from those contained in the Code of Criminal Procedure, and while in some respects they might be thought to be less liberal than the latter provisions, in other respects they were more advantageous to the accused persons. According to him, trial by a Council‑of‑Elders could be equated with trial by one's equals and peers. This observation of Cornelius, J., although entitled to respect, could not, however, be regarded as the dictum of the Supreme Court, as the other three learned Judges, as already stated, did not express any opinion on this point.

415. However, in the light of further experience of the working of the Regulation, Cornelius, C. J., considerably modified the view he bad expressed in Dosso's case. In The State v. Nawab Gul P L D 1963 S C 270 his Lordship criticised the tendency of the executive to withdraw cases from the ordinary Courts for trial by Jirgas in the following words:-

416. "At a time when to a rapidly increasing extent, the jurisdiction, long established and familiar, belonging to the ordinary Courts, is being avoided in cases of serious crimes by orders of withdrawal, made on the grounds of expediency, it is of importance that it should be known, in what kind of cases and in what manner, the power is being exercised. The present is a case whose facts give ample cause for concern whether public justice is advanced by proceedings of this kind. Or whether, on the contrary, if it becomes a general risk that men may be sent to be tried by Jirga when there is visibly no case against them, and they are deprived of redress through the ordinary forms of law, there is not a danger that the image of public Justice, built up with the aid of careful legislation and steady implementation of rules of procedure for at least a hundred years, will inevitably be destroyed, What might follow can well be imagined. An immediate result will be that devotion to law and to lawfulness in behaviour will be at a total discount."

417. It would be seen that in the case of Nawab Gul, Cornelius, C. J. was not only lamenting the tendency of the executive to withdraw cases from the jurisdiction of the ordinary Courts, but he was clearly postulating that a trial by Jirga was utterly inconsistent with the accepted legal and judicial processes which had been built up in this country over the last hundred years.

418. After the enforcement of the 1962 Constitution, the question of the vires of the Frontier Crimes Regulation was again thoroughly examined by a Full Bench of the High Court of West Pakistan, of which I had the honour to be member in Malik Muhammad Usman v. The State and others P L D 1965 Lah. 229. It was held that sections 8 and I1 of the Regulation, providing for reference of civil and criminal proceedings to a Jirga, not only offended against the equality clause embodied in Fundamental Right No. 15, but they were also repugnant to Fundamental Right No. 1 which provided that "no person shall be deprived of life and liberty save in accordance with law", for the reason that "it being settled that the Jirga procedure cannot be described as a law in any recognised sense of the term."

419. This dictum of the Full Bench was followed and reiterated by a Division Bench of the High Court, of which again I was a member, in Sher Ali v. Deputy Commissioner, Mianwali and others P L D 1967 Lah.

1. That case related to District Mianwali of the former Punjab Province, and concerned a point of time when the right to invoke certain fundamental rights had been suspended during the emergency created by the 1965 War. It was held that even though Funda mental Right No. 15, embodying the equality clause, could not be invoked during the continuance of the emergency, yet Fundamental Right No. 1 could be so invoked, as it had not been suspended, and that the trial under the Frontier Crimes Regulation was bad as the Regulation was not a law within the meaning of that Right.

420. It will be seen that the Courts in this country have consistently regarded; trial of both civil and criminal causes under the Frontier Crimes Regulation] as being violative of the fundamental principles governing such trials under; the ordinary law of Pakistan. The Courts have taken exception not only to, the arbitrary power conferred on the Deputy Commissioner to pick and choose cases for withdrawal from the ordinary Courts for trial by a Council‑of- Elders, but have also expressed concern at the power enjoyed by the Council -of‑Elders to act upon evidence or information obtained behind the back of the accused person. Finally, we must also take note of the fact that a trial under the Frontier Crimes Regulation cuts at the very root of the principle of separation of the judiciary from the executive, piously embodied in every successive Constitution of Pakistan, by entrusting the trial to a Council‑of- Elders chosen by the executive, and by depriving the parties concerned of any right of appeal to the established Courts of the country, including the High Court and the Supreme Court. For all these reasons, it is clear that a trial under the Frontier Crimes Regulation cannot be regarded as a trial in accordance with law, the term "law" being understood in the sense of a valid law in terms of the Constitution as well as the accepted forms of legal process obtaining in Pakistan.

421. An additional factor, having a bearing on this question, is that there are four accused persons in this case, namely, the prisoner Ch. Zahoor Elahi, his alleged accomplice Ch. Muhammad Shafi and two persons belonging to the tribal area. Papers were placed before us to show that the two persons belonging to the tribal area of Baluchistan had objected to their trial by the ordinary criminal Court, whereas the prisoner and Ch. Muhammad Shafi had objected to their trial by the Council‑of‑Elders. The learned Assistant Commissioner/A.D.M. exercising the powers of the Deputy Commissioner under section 11 of the Frontier Crimes Regulation, choose to respect the wishes of the accused persons belonging to the tribal area, but gave no reasons for discarding the preference expressed by the prisoner and Ch. Muhammad Shafi. The ordinary law embodies in the Criminal Procedure Cod being also applicable to the tribal area of Kohlu; two of the accused persons, who are alleged to be the main culprits, being from a non‑tribal area; and the cause of action having originated outside the tribal area in the shape of a conspiracy to smuggle arms into the Murri‑Bugti area of Baluchistan, it would clearly hove been in accordance with law, if the case had been allowed to remain under the ordinary law, viz., the Criminal Procedure Code.

422. It may be mentioned that section 179 of the Criminal Procedure Code does contemplate that:

423. "When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may lie enquired into or tried by a Court, within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued."

424. In accordance with this provision, the offence alleged against the prisoner could clearly be enquired into and tried by a Curt in the Punjab Province, possibly at Lahore or Gujrat, according to the allegations of the prosecution. Such a trial would ensure the due availability of legal rights and safeguards to which the prisoner is entitled in accordance with law under Article 9 of the Constitution.

425. It was also contended that this was a case of no evidence, and for this reason as well the reference made under Section 11 of the Frontier Crimes Regulation was bad. In view of the conclusion reached by me as to the inconsistency of the Frontier Crimes Regulation with Article 9 of the Consti tution, it does not appear necessary to examine this question.

426. As a result of the foregoing discussion it follows that this case involves several questions of public importance with reference to the enforcement of Fundamental Rights as embodied in Articles 9 and 10 (2) of the Constitution, beside questions relating to the violation of the provisions contained in Article 4 of tire Constitution, as well as sections 85 and 86 of the Code of Criminal Procedure.

427. I now proceed to examine the question whether any relief can be granted to the prisoner in view of the continuance in force of the Proclamation of Emergency under Article 232, and the order of the President under Article 233 (2) of the Constitution, suspending the right of the citizen to move any Court for the enforcement of certain specified fundamental rights.

428. Clause (5) of Article 8 of the Constitution provides that:

429. "The rights conferred by this Chapter shall not be suspended, except as expressly provided by the Constitution."

430. Clause (1) of Article 232 gives power to the President of Pakistan to issue a Proclamation of Emergency, if he is satisfied that a grave emergency exists in which security of Pakistan, or any part thereof, is threatened by war or external aggression or by internal disturbance beyond the power of a Provincial Government to control. Clause (1) of Article 233 empowers the State to make any law or to take any executive action, while a Proclamation of Emergency is in force, without being inhibited by Articles 15, 16, 17, 18, 19 and 24 of the Constitution. Cause (2) of the same Article provides that:

431. "While a Proclamation of Emergency is in force the President may, by Order, declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter I of Part II as pray be specified in the Order, and any proceeding in any Court which is for the enforcement or involves the determination of any question as to the infringement, of any of the Rights so specified, shall remain suspended for vie period during which the Proclamation is in force, and any such Order may made in respect of the whole or any part of Pakistan."

432. Clause (3) of this Article enjoins that an order made under clause (2) shall be laid before a joint sitting of Parliament for approval in the same manner as is required for a Proclamation of Emergency under Article 232 of the Constitution.

433. In pursuance of the aforesaid provisions, a Proclamation of Emergency was issued on the 15th of August, 1973, and simultaneously an Order was also issued in terms of clause (2) of Article 233, suspending the right to move any Court for the enforcement of fundamental rights embodied in Articles 10, 15, 16, 17, 18, 19, 2.s, 24, 25 and 27. Article 9 was not included in the said order. It was stated that duration of the Proclamation of Emergency, as well as the order under Article 233 (2), had recently been extended by the Parliament to the 14 th of August 1974, and the discussion accordingly proceeds on this assumption.

434. It was submitted by Mr. Manzoor Qadir that even though the right to move any Court for the enforcement of the fundamental rights specified in the President's Order stand, suspended, yet the Court can take suo moto notice of the violation of any of those rights, if the facts brought before it reveal such a contravention. If by taking suo moto notice is meant the enforcement of any of these rights, then the submission is clearly, untenable. Clause (2) of Article 233 contemplates, in the first instance, a declaration by the President that the right to move any Court for the enforce ment of the specified fundamental rights shall remain suspended for the period during which a Proclamation of Emergency is in force. The clause next contemplates that any' proceeding in am, Court, which is f r the enforce ment, or involves the determination of any question as to the infringement of any of the rights so specified, shall also remain suspended for the same period. From these provisions it becomes clear that the Court cannot even suo moto proceed with the determination of any question as to the infringement of the specified rights. In other words, the President's Order contemplated by clause (2) of Article 233 of the Constitution has the effect of not only holding in abeyance the right of the citizen to move any Court for the enforcement of the fundamental rights concerned, but also has the effect of suspending the power of the Court to proceed with any matter involving such enforcement or, determination of any question as to the infringement of such rights. The jurisdiction of the Court is thus completely barred it respect of the enforcement of the specified rights, so long as the President's Order remains in force. On this view of the matter, it follows that in the present case, it is only the fundamental right embodied in Article 9 of the Constitution which can be enforced in the present proceedings, as this right does not find mention in the order issued by the President under Article 233 (2).

435. It was submitted by the learned Attorney‑General, as well as the Advocates‑General of Punjab and Baluchistan that we should not pass any operative order in this case for the reason that the constitution petition moved by Malik Ghulam Jillani of the Tahrik‑e‑Istiqlal, on these very facts, was still pending final adjudication before the High Court of Sind & Baluchistan, which had so far only decided the preliminary question of its territorial jurisdiction in the matter. The learned counsel submitted that the petition filed in this Court as well as one pending in the High Court, have raised several disputed questions of fact, which could not be determined without an elaborate enquiry and recording of evidence. They suggested that we may not wish to undertake this exercise in the present proceedings under Article 184 (3) of the Constitution.

436. I am inclined to agree with these submissions. While undoubtedly the petition filed in this Court involves questions of public importance with reference to the enforcement of certain fundamental rights guaranteed by the Constitution, it is at the same time clear that the petition pending before the High Court of Sind & Baluchistan also proceeds on identical facts. That High Court has already decided the preliminary question of jurisdiction in favour of the prisoner, and would have proceeded to examine the allegations of mala fides, fabrication of documents and falsification of records etc., if the matter had not been brought to this Court by both sides.

437. My conclusions may now be summed up. The original petition on behalf of the prisoner under Article 184 (3) of the Constitution does involve several questions of public importance with reference to the enforcement of fundamental rights as embodied in Article 9 and 10 (2) of the Constitution. The Supreme Court and the High Court concerned have territorial jurisdic tion in the matter for the reason that the case is not one relating to a tribal area in terms of clause (7) of Article 247 of the Constitution, as a part of the cause of action has arisen outside the tribal area. If the case had related wholly and substantially to the tribal area, and had thus fallen within the ambit of aforesaid clause (7), the Supreme Court and the High Court would have had no constitutional jurisdiction in the matter, as distinguished from jurisdiction conferred by law, except the jurisdiction saved by the proviso to clause (7). According to Act II of 1964, this jurisdiction would include, as regards the tribal areas of Quetta Division, the writ jurisdiction of the High Court, but not the jurisdiction to enforce fundamental rights, as no such jurisdiction was restored by that Act.

438. It further appears to me that owing to the continuance in force of the Proclamation of Emergency, and the President's Order under Article 233 of the Constitution, suspending the right of the citizen to enforce certain specified fundamental rights, the only right that can be enforced in the present proceedings is the one embodied in Article 9 of the Constitution, as the same has not been suspended. The term law as used in this Article is not confined to statute law, but also refers to accepted legal and juridical norms and processes obtaining in Pakistan. The prisoner being a citizen of that part of Pakistan, where machinery to enforce this fundamental right is available, and the matter being one which is not hit by clause (7) of Article 247 of the Constitution, has a right to be tried under the ordinary law of the land, and in accordance with accepted principles governing a fair trial.

439. As the Frontier Crimes Regulation, 1901 offends against accepted forms of legal process obtaining in Pakistan. It cannot be treated as law within the meaning of Article 9 of the Constitution. It is also clear that a fair trial in accordance with law as required by this Article, would not be possible at a place in the tribal area, where conditions are admitted by Baluchistan Government itself to be disturbed owing to military operations being conduct ed in the vicinity. As a result it must be held that the prisoner is entitled to be tried under the ordinary law of the land, viz., the Criminal Procedure Code and the Evidence Act and at a place outside the tribal area where the conspiracy alleged against him is said to have originated. The prisoner cannot be deprived of his constitutional safeguards under Article 9, by being swiftly taken away to the tribal area, without compliance with the statutory provisions of sections 85 and 86 of the Code of Criminal Procedure.

440. As the Constitution petition filed by Malik Ghulam Jillani of the Tehrik‑e‑Istiqlal on identical facts, is still pending final adjudication before the High Court of Sind & Baluchistan, I would not pass any operative order in the original petition before this Court, but leave the matter to be finally decided by the High Court in the light of the observations made in this judgment regarding the various legal and constitutional questions arising in the case. I would dispose of the petition in these terms.

441. By our order dated the 28th of January, 1974 Criminal Appeal No. 2 of 1974, instituted by the Government of Baluchistan against the preliminary order of the High Court in the matter of its territorial jurisdiction in this case, was dismissed. The reasons for that dismissal appear sufficiently in the body of this judgment and need not be repeated here.

442. Lastly, I would accept Review Petition No. 37 of 1973 in Hafiz Umar Gul's case to the extent that President's Order No. 11 of 1961 had the effect of restoring not only the ordinary, but also the extraordinary writ jurisdiction of the High Court in relation to tribal areas, that it was an existing law within the meaning of Article 225(1) of the 1962 Constitution, and it did not specifically require to be extended to the tribal areas in terms of clause (1) of Article 223 of that Constitution. However, the question has now become academic in view of the promulgation of the Supreme Court and the High Court (Extension of Jurisdiction to Certain Tribal Areas) Act, 1973, by which the jurisdiction of these Courts has been fully restored in relation to the areas comprised in the 'former States of Chitral, Dir, Swat and Malakand protected areas of the North‑West Frontier Province. In the meantime, during the pendency of the constitution petition in the High Court of Sind & Baluchistan and the criminal case registered against him at Kohlu, the prisoner shall continue on bail as allowed by this Court by its order dated the 28th of January, 1974.

ORDER OF THE COURT

443. In accordance with the unanimous opinion of the Court Criminal Appeal No. 2 of 1974 is dismissed, and no order is passed on Constitutional Petition No. 61‑P of 1973, since the Constitutional Petition under Article 199 of the Constitution being No. 1143 of 1973 is still pending adjudication on merits in the High Court. It is directed that this petition be disposed of by the High Court as expeditiously as possible. The detenu, Ch. Zahoor Elahi, shall, however, continue on the bail already granted to him by this Court during the pendency of the said Constitutional Petition in the High Court.

444. In accordance with the opinion of the majority Civil Review Petition No. 37 of 1973, filed for the review of the decision of this Court in Hafiz Umar Gul's case is allowed, after condoning the delay.

445. K. B. A. Order accordingly.