ABDUR RASHID Versus ADDITIONAL SECRETARY, HOME AND TRIBAL AFFAIRS, GOVERNMENT OF N.-W. F. P., PESHAWAR

MUHAMMAD AZAM KHAN, J .‑‑ Abdur Rashid son of Raza Khan, petitioner, has approached this Court through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, praying for a declaration that the impugned order of respondent No. 1, dated 21‑11‑1993, order of respondent No.2, dated 17‑12‑1992, order of respondent No.3, dated 26‑5‑1992 and the award of the Jirga, dated 31‑5‑1992 as illegal, without jurisdiction, without lawful authority and of no legal effect.

2. The petitioner averred that he was charged in case F.I.R. No.486, dated 2‑4 1989 of Police Station Mingora, under section 302, P.P.C. for the murder of Muhammad Bashar, the father of respondent No.7, that before the registration of the aforesaid case, Shariat Appellate Bench of the Supreme Court vide its decision reported in PLD 1989 SC page 533, declared section 302, P.P.C. as repugnant to the injunction of Islam. A review petition was preferred by the State which also failed and was reported in PLD 1990 SC page 1172, and the original judgment, dated 5‑7‑1989 had to be effected from 12th day of Rabi‑ul‑Awwal 1411 A.H. Thereafter the law contained in Pakistan Penal Code was abolished as provided in the PATA Regulation I of 1975, provided for the jurisdiction of Jirga over certain offences contained in the Pakistan Penal Code including 302, P.P.C.

3. That the judgment of the Supreme, Court required the Government to provide the law on the subject failing which the law shall be Qur'an and Sunnah but, no law on the subject was provided under Article 247 of the Constitution and, therefore, there occurred a vacuum in Malakand Division which could be rectified by applying Quran and Sunnah as per strict direction of the Supreme Court of Pakistan aforesaid discussed. In such circumstances the trial of the petitioner by Jirga in state of a vacuum was without jurisdiction and without lawful authority.

4. Having considered the arguments of the learned counsel for the parties we are of the view that the petitioner has already undergone the conviction and sentence under section 302, P.P.C. awarded by the Jirga in accordance with the prevailing law in Malakand Division. The writ petition being infructuous to a very great extent is dismissed with no order as to costs.

N.H.Q./404/P

Petition dismissed