SHAUKAT KHAN vs ASSISTANT POLITICAL AGENT, LANDI KOTAL, KHYBER

ORDER

IFTIIKHAR MUHAMMAD CHAUDHRY, J.--This petition has been filed for leave to appeal against the judgment/order of Peshawar High Court, Peshawar dated 5th March, 2002. Concluding para. Therefrom is reproduced hereinbelow:-- "5. The petitioner has been issued a summon by respondent No,1 in consequence of a complaint made by respondent No,3 with direction to appear before respondent No,1 to answer the allegations levelled against him in the complaint. The petitioner should face the proceedings and in case any adverse order is passed against him he should approach the Court concerned to redress his grievance. The petition is without substance which is hereby dismissed with listed C.M."

2. Learned counsel argued that as important question regarding Constitutional jurisdiction of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan is involved in this case, therefore, it being a point of public importance needs consideration. He further stated that to examine identical point this Court has already granted leave to appeal in Civil Petition No,253-P of 1992 wherein one of the question for determination is as to whether the jurisdiction of the High Court in the case was barred under Article 247 (7) of the Constitution of Islamic Republic of Pakistan. It may be noted that question of exercising jurisdiction by the High Court in tribal agency has already been decided by this Court in the case of Qaum Bangash and others v. Qaum Turi and others (1991 SCMR 2400). Relevant para. Therefrom is reproduced hereinbelow:-- From the aforesaid Constitutional instruments to which reference has been made, it would appear that the Peshawar High Court with which we are presently concerned was denuded of jurisdiction under clause (5) of Article 223 of the 1962 Constitution as from 27th January, 1964. Act II of 1964 only restored the jurisdiction of the Supreme Court and the High Court of West Pakistan in regard to the tribal areas of Quetta Division, so that the said Court did not possess jurisdiction under the Constitution in relation to the tribal areas of Province of N.-W.F.P. And the former States of Amb, Chitral, Dir and Swat. It appears that the next Constitutional instrument, in this behalf to be noted is President's Order 28 of 1970 called the Supreme Court and the High Court (Extension of Jurisdiction to Tribal Areas) Order, 1970, Article 2 whereof provided that the Supreme Court of Pakistan shall have, in relation to tribal areas of Chitral, Dir, Kalam, Swat and Malakand protected area (all forming part of Provincially Administered Tribal Area), the same jurisdiction to hear and determine appeals from orders or sentences of the Peshawar High Court in criminal cases as it has in relation to the other areas of North-West Frontier Province. Article 3 of the Order extended the jurisdiction of the Peshawar. High Court in relation to the same tribal areas so as to confer appellate jurisdiction and the power to confirm death sentences passed by Court of Session as it has in relation to other areas of N.-W.F.P. Under the Criminal Procedure Code. The said P.O. No,28 of 1970 was repealed and re-enacted on 9th February, 1973 as Act No,XXVII of 1973 with the title Supreme Court and High Court (Extension of Jurisdiction to Certain Tribal Areas) Act, 1973. Clause (7) of Article 261 of Interim Constitution of 1972 provided as under: "(7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under this Constitution in relation to a Tribal Area, unless the Federal Legislature by law otherwise provides: Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day." It would therefore be seen that the Peshawar High Court did not possess jurisdiction over any of the Federally Administered Tribal Areas even after the promulgation of P.O. No,28 of 1970 or Act No,XXVII of 1973. Kurram Agency comes within the "Federally Administered Tribal Areas" according to the definition of the term in Article 260 of Interim Constitution and Article 246 of 1973 Constitutional jurisdiction with regard to which continued to be excluded by virtue of clause (7) of Article 261 and Article 247 of the two Constitutions respectively which are identical provisions. No other enactment was brought to our notice extending the jurisdiction of the Peshawar High Court to the area in question, namely, Kurram Agency forming part of the Federally Administered Tribal Area. Therefore, it appears that the Peshawar High Court did not have jurisdiction under the Constitution in relation to the Federally Administered Tribal Areas until 1980 when the Constitutional petition was instituted by the appellants in this case. This appears to be the position -as found in Muhammad Afzal v. Assistant Political Officer (1985 PCr.LJ (Karachi) 1984) and Khalid Pervez v.

Federation of Islamic Republic (PLD 1987 Lah. 323).

As a larger Bench of this Court in the above judgment has observed that jurisdiction of Peshawar High Court has not been extended in the Tribal Areas, therefore, Constitutional petition filed by the petitioner was rightly dismissed by the High Court vide impugned judgment.

3. Besides above it is a recognized principle of administration of justice that for setting aside an order or to challenge the proceedings remedy should be availed first of all within the hierarchy of the law under which the forum whose proceedings have been objected to is functioning instead of approaching different forum for the redressal of grievances. Reference in this behalf may be made to the cases (i) Muhammad Ashfaq v. The State (PLD 1973 SC 368) and (ii) Khudai Dad and others v.

The State (PLD 1997 Quetta 69). Thus for the foregoing reasons we see no force in the instant petition, as such same is dismissed and leave declined.