2003 PLP 1975 (YLR)

EJAZ AFZAL KHAN, J.

The petitioner through instant petition has questioned the proceedings pending adjudication before the Assistant Political Agent, South Waziristan Agency, Ladha which was initiated on the application of Khair Muhammad, respondent No.4 herein.

2. The learned counsel appearing on behalf of the petitioner contended that the petitioner has no concern whatever with the business transacted between Khair Muhammad and Mumtaz, respondents Nos.4 and 6 herein, therefore, the proceedings against him being motivated by malice and mala fide is coram non judice. The learned counsel next contended that if at all, without conceding, there was any business transaction that having taken place outside the tribal area cannot be enquired into by the A.P.A. The learned counsel to support his contention placed reliance on the case Nabi Bakhsh and another v. The State through Collector, D.I. Khan and others (PLD 1991 Peshawar 10); Haji Ghulam Sarwar and others v. Pir Akbar and 3 others (2000 MLD 1643) and the case of Dilawar and another v. Political Agent, Khybar Agency and 3 others (2000 PCr.LJ 1703).

3. The learned counsel appearing on behalf of the respondent No.4 contended that the initiation and even continuation of the proceeding, before the A.P.A. has their origin in the agreement of the parties, therefore, there is nothing wrong or illegal about them.

4. The learned Deputy Advocate- General also supported the arguments of the learned counsel for the respondent by placing reliance on the case of Shaukat Khan v. Assistant Political Agent, Landi Kotal and others (PLD 2002 SC 526).

5. We have gone through the record and carefully considered the submissions of the learned counsel for the parties.

6. Admittedly, as is apparent from the application of the respondent, the business transaction, if true, had taken place outside the tribal area, as a part of it took place in Saudi Arabia and a part thereof at Tank. How the proceedings could be initiated against the petitioner in the tribal area when neither the cause of action has arisen nor petitioner resides therein is a fact which does not find any plausible explanation from the record. It is well-established principle of law that a lis will be tried in a Court of law in the territorial limits of whose jurisdiction the defendant resides or cause of action has taken place. When neither of the conditions is fulfilled, we are afraid, the proceeding before the Assistant Political Agent has to be looked askance at. The very absence of an explanation in this behalf would taint the entire proceeding with mala fide and would thus make that coram non judice. In the case of Nabi Bakhsh v. State, supra, it was held that mere fact that one of the parties to the dispute originally belonged to tribal area would not confer jurisdiction on the Political Authorities nor take away the jurisdiction of the ordinary civil and criminal Courts, within whose jurisdiction the subject-matter of dispute situates, the transaction has taken place the party resides or the cause of action has arisen, more so when, forum provided in the latter case satisfies the basic and fundamental requirements of law in administration of justice. In the case of Haji Ghulam Sarwar and another v. Pir Akbar Din and 3 others, supra, an almost similar view was expressed by this Court. In the case of Dilawar and another v. Political Agent, Khyber Agency, supra, this Court after considering a string of judgments of the High Courts and the apex Court reiterated the same view which merits reproduction and thus runs as under:-- "Although this Court time and again has held that even if one of the parties belongs to the tribal area, if the dispute is of civil nature and the business transaction had taken place in the settled area and nothing was done by the patties in tribal area, the recourse should be had to the normal Civil Courts within whose territorial jurisdiction cause of action had accrued. Similarly if a crime is committed in settled area, a person guilty of offence cannot be picked up/arrested from the settled area and tried by the Political Authorities under the F. C. R., but the Political Authorities in the tribal area without caring for the law applicable and the judgment of this Court as well as Supreme Court of Pakistan malafidely assume jurisdiction in the matters, harass and humiliate the peaceful citizens though they do not have jurisdiction in such matters. This practice has gained momentum because there appears to be no check on their unlimited powers which they have themselves assumed."

7. A perusal of the above quoted paragraph would reveal that where the cause of action has arisen in settled area respondent could seek his remedy only in a Court of law within the territorial limits of whose jurisdiction the defendant resides or the cause of action has arisen. Nobody can be allowed to take his lis to a Court of his choice in an outright defiance of the well-established principles regulating the territorial jurisdiction of Courts.

8. The argument of the learned counsel for the respondent that the initiation or even continuation of the proceeding before the A.P.A. has its origin to the agreement of the parties has not impressed us to the least, as it is law and not agreement of the parties which confers jurisdiction on a Court or Tribunal that too when the agreement, so called, does not appear to be volitional.

9. The judgment rendered in the case of Shaukat Khan v. Assistant Political Agent, Landi Kotal, supra, cited at the bar by the learned Deputy Advocate-General has no relevance to the case in hand because in that case no such question of jurisdiction was in focus. As neither petitioner resides in the tribal territory nor the cause of action has arisen, therein, we have no other option but to allow this petition and declare the proceeding before the learned Assistant Political Agent as without jurisdiction and lawful authority to the extent of the petitioner. S.A.K./815/P Petition allowed.