P L D 2010 Peshawar 7 (PLP)

EJAZ AFZAL KHAN, C J.

Hazrat Baz petitioner herein has questioned the order dated 21-7-2007 of the Political Agent, Khyber Agency, and those of higher fora in the hierarchy whereby he has been sentenced to ten years' R.I. with a fine of Rs. one lac, or in default to undergo 2-1/2 years' S.I.

2. Learned counsel appearing on behalf of the petitioner contended that where the Court was not established and notified in accordance with the provisions of section 46 of the CNSA in the Tribal Areas, the petitioner could not be tried by the Political Agent and that the entire proceedings and subsequent orders passed by the next higher fora in the hierarchy being against law and statute are liable to be struck down.

3. Learned counsel appearing on behalf of the Political Agent contended that once the CNSA was extended to the Federally Administered Tribal Areas; vide SRO 1295(I)/98, dated 16-11-1998 with addition of section 2(c) in the 2nd Schedule, the Political Agent had the powers to try the petitioner. Learned counsel by referring to the Notification No.8-W, dated 9-3-1939, contended that where the powers of Sessions Court are also conferred on the Political Agent, no infirmity much less legal can be found in the trial of the petitioner or in the decisions given by the next higher fora in the hierarchy. The learned A.A.-G. appearing on behalf of the Federal Government also adopted the stance taken by the learned counsel for the Political Agent. Mr. Ishtiaq Ibrahim, A.A.-G. appearing on behalf of the State was also in agreement with the proposition canvassed at the bar by the learned counsel for the Political Agent.

4. We have gone through the 'record carefully and have also considered the submissions made by the learned counsel for the parties.

5. No doubt, CNSA has been extended to the tribal areas by virtue of the notification mentioned above. Similarly powers of Sessions Judge have also been conferred on the Political Agent by virtue of the Notification cited above but can a "Jirga" constituted under the FCR be treated as a Court established in accordance with the requirements of section 46 of the CNSA. The answer to this question can be in affirmative if we confine ourselves to the Notification cited above. But it would certainly be in negative if seen in the light of the over all scheme of the Act. It, in the first instance, requires establishment of Special Courts and then appointment of a Sessions Judge or an Additional Sessions Judge as a Judge Special Court, after consultation with the Chief Justice of the High Court. The Courts thus established and the Special Judge thus appointed is to try the accused in the cases registered under the Act. If the trial terminates in conviction or acquittal, an appeal thereagainst lies to the High Court and is heard by a Bench of not less than two Judges when seen in the light of section 48 of the Act. We despite over-stretching the Notifications mentioned above in consonance with the thrust of the arguments addressed at the bar by the learned counsel for the respondents, cannot afford to agree with them as this would not only defeat the provisions of the Act but their spirit as well. We, thus without indulging in unnecessary semantics or verbal quibbles, would straightaway hold that the Political Agent was not competent to try the petitioner and that the next higher fora in the hierarchy were not competent to hear appeal or revision.

6. This petition is thus allowed, the impugned conviction and sentence is set aside and the petitioner Hazrat Baz who has been in Jail ever since his trial, is directed to be released on bail if he furnishes bail bonds in the sum of Rs. Three lac, with two sureties, each in the like amount to the satisfaction of the Political Agent Khyber agency.

7. We, therefore, direct the Federal Government to take necessary measures for the establishment of a Special Court in the area in accordance with the provisions of the Act mentioned above. We also direct the prosecution to forward the case of the petitioner to the Court of competent jurisdiction, if and when constituted. Office is directed to send a copy of this judgment to the Federal Secretary (Law and Justice Divisions) Islamabad, for necessary action, as discussed above. H.B.T./9/P Petition allowe