Haji SALIM KHAN and 2 others vs COMMISSIONER, F.C.R. KOHAT DIVISION, KOHAT and 2 others

ORDER

' QAZI MUHAMMAD FAROOQ, J.---Through this Constitutional petition the petitioners Haji Salim Khan, Sayyal Khan and Mir Alam Jan, residents of Parachinar Kurram Agency, want this Court to declare the order dated 24-12-1995 of the Commissioner, F.C.R. Kohat DiVision passed in Revision Petition No, 45 of 1995 as without lawful authority and of no legal effect.

2. Put shortly, the circumstances in which this petition has arisen are that vide Mutation Nos.2071 and 2186 attested on 18-8-1990 and 22-10-1991 the petitioners had purchased land measuring 6 Kanals, 15 Marlas comprised in Khasra No,1518/1412 and Khasra No,1522/1413 situated in Village Tootici, Kurram Agency. The transaction was followed by as many as three pre-emption and two declaratory suits which were dismissed. Thereafter, on 22-2-1992 a civil suit was filed by one Haji Qambar Ali for cancellation of the sale mutations which was dismissed by the Additional District Magistrate Upper Kurram, Parachinar on 12-7-1995. Feeling aggrieved Ahmed Ali, (brother of Qambar Ali deceased) filed a revision petition before the Commissioner F.C.R. Kohat Division which was allowed on 24-12-1995 in the following terms:-- "Accordingly I remand the case back to the lower Court with the direction that the case be processed strictly in accordance with the revenue documents duly registered/entered in the Revenue Record. It is further directed that action be initiated against the revenue officials responsible for distortion of facts available which reflects their inefficiency."

' Taking exception to the above order the petitioners have filed this writ petition.

3. It was contended by the learned counsel for the petitioners that although the parties belonged to Kurram Agency and the land in dispute was also situated there yet this Court had the jurisdiction to determine the validity of the impugned order as it was without jurisdiction and was passed in the office of the Commissioner, F.C.R., Kohat Division which was located within the territorial jurisdiction of this Court.

4. The contention has not impressed us. It is by now well-settled that in view of the explicit bar contained in clause (7) of Article 247 of the Constitution of the Islamic Republic of Pakistan this Court cannot exercise any jurisdiction in relation to a Tribal Area. The location of the office of the Commissioner, F.C.R., Kohak Division being traceable to administrative reasons cannot remove the Constitutional bar as to enable this Court to acquire jurisdiction in the matter. Reference in this context may be made to the instructive judgment of the Supreme Court reported as Qaum Bangash and others v. Qaum Tori and others (1991 SCM R 2400) which applies .To this case on all fours inasmuch as in that case also the parties belonged to the Tribal Area and the property in dispute was situated in the Tribal Area. It was observed in that authority that the fact that final order was passed by the Home Secretary at a place in the settled area cannot snap the relationship of the dispute with the tribal area. The following observations made therein are also pertinent:- "As regards the argument that Federally Administered Tribal Areas form part of Pakistan, therefore, they would be subject to the jurisdiction of the superior Courts, it is sufficient to state that under clause (7) of Article 247, the Constitution has expressly excluded the jurisdiction of these Courts in relation to the Tribal Area, unless the Parliament by law 'otherwise provides. As discussed above there is no Act of Parliament providing otherwise in respect of the Federally Administered Tribal Areas of N.-W.F.P. And the superior Courts did not exercise jurisdiction in such areas immediately before the commencing day of the Constitution. The contention is, therefore, devoid of merit."

' The writ petition is, therefore, not maintainable and as such is dismissed in limine alongwith C.M.

No,278/96.