P L D 1957 (W (PLP)

S. A. RAHMAN, C. J.‑

Dosso and Muhammad Khan were convicted by the District Magistrate, Loralai, under section 376 P. P. C. read with section 12 (2) of the Frontier Crimes Regu lation, 1901, and sentenced to five years' rigorous imprison ment each, on the basis of an award by a jirga. They are being detained in the Machh Jail within the jurisdiction of this Court. A petition has been put in on their behalf under Article 170 of the Constitution, praying for the issue of a writ in the nature of habeas corpus or any other appropriate writ for their being set at liberty, on the ground that they are being illegally and improperly detained. The petition also seeks the issue of a writ of certiorari or a suitable order or direction for quashing the order of the District Magistrate by which they were convicted and sentenced. Loralai is one of the Special Areas excluded from this Court by Article 178 of the Constitution. Mr. Anwar Assistant Advocate‑General, who appeared for contested the petition on the ground that would bar this Court from acceding to the prayers made in the petition. The legal position, as we see it, is as follows, by section 2 of the Establishment of West Pakistan Act, 1955, the Tribal Areas of Baluchistan, along with certain other tribal areas and States, were incorporated into the Province of. West Pakistan. Article 1 of the Constitution declares that the territories of Pakistan shall comprise the territories of the Provinces of East Pakistan and West Pakistan. It is thus clear that even A the Special Areas, which is the name given to the old Tribal Areas, are included within the area of Pakistan and the citizens residing therein are entitled to the benefit of the fundamental rights guaranteed by the Constitution had embo died in Part II thereof. Article 4 of the Constitution lays down that any existing law, or any custom or usage having the force of law, in so far it is inconsistent with the provisions of Part II of the Constitution, shall, to the extent of such inconsistency, be void. We have already held in Toti Khan etc. v. The District Magistrate, Sibbi and Ziarat (Writ Petition No. 17 of 1957, decided on the 5th of August 1957) (P L D 1957 (W. P.) Quetta 1), that the provisions of the Frontier Crime; Regulation, 1901, which enable the executive authorities to refer any criminal case to a jirga are repugnant to Article 5 of the Constitution and are, therefore, void under Article

4. The position, therefore, I is clear, if that authority is followed, that a conviction based on the award of a jirga in a criminal case, even in the Special Areas, which include Loralai, should be regarded as without jurisdiction as there would be no valid legal sanction behind it. By Article 178; however, this Court is precluded from exercising any jurisdiction under the Constitution "in relation to the Special Areas". The petitioners were transferred to the Mach Jail which is located within the jurisdiction of this Court, and are undergoing their sentences there. Prima facie the conditions of exercise of jurisdiction under Article 170 are satisfied inasmuch as the persons in respect of whom order is to be passed are within the territorial limits of our juris diction. It is contended, however, by Mr. Anwar, on behalf of the State that even this fact would not enable the Court to issue a writ in the present case in view of the bar raised by Article

178. The question that falls for determination is the exact connotation of the expression "in relation to the Special Areas" occurring in Article

178. Mr. Anwar contends that we would be exercising jurisdiction in relation to the Special Areas, if we order the release of the petitioners even while they are detained within the jurisdiction of this Court. In his view, this expression should be interpreted to preclude an order in any way connected with a transaction that has taken place within a Special Area. The learned Assistant Advocate‑General concedes that this Court would have jurisdiction in a case in which a resi dent of a Special Area is accused of a crime committed within the territorial limits of this Court's jurisdiction. Obviously, therefore, the expression "in relation to the Special Areas" is not comprehensive enough to include reference to residents of Special Areas who commit a crime outside those areas in Pakistan. He also acknowledges that in civil litigation between two residents of a Special Area, which proceeds in a subor dinate Court under the appellate jurisdiction of this Court the question of legality or otherwise of an order passed by an authority in the Special Area based on a jirga award may be canvassed in the course of that litigation, as a collateral issue. Article 178 excludes the jurisdiction of this Court and the Supreme Court but not of the subordinate Courts in relation to special areas a truly anomalous position. Surely, in such a case if there be an appeal or revision to this Court, there would be nothing to prevent this Court from pronouncing on the correctness or otherwise of the decision of the subordinate Court on such an issue. It would thus appear that this Court is not debarred from expressing an opinion upon the legality or otherwise of orders passed by the relevant authorities in a Special Area, in all conceivable cases. Apparently what Article 178 enacts is that this Court shall not entertain any appeal or revision from the orders passed by the autho rities in a Special Area, whether in a civil or a criminal matter. To that extent, the Article entails the consequence that although the order in question may be ultra vires of the Cons titution, it is not open to the residents of the Special Area concerned, under Article 170 of the Constitution or under L any other provision of law, to approach this Court for redress. The right to have the order declared to be invalid from a subordinate Court may exist but the remedy cannot be obtained from this Court. The question resolves itself, into the problem whether this Court can issue a writ in the nature of habeas corpus in respect of persons present within the area of its own jurisdiction, if they are being detained under an order illegally passed by an authority over which this Court exercises no jurisdiction. The learned Assistant Advocate‑General argued, on the authority of Birpal Singh v. Emperor (A I R 1946 F C 2), that Article 178 should be regarded as a proviso to Article 170, thus effectually preventing this Court from exercising the jurisdiction vested in it by Article 170, in respect of any matter pertaining to the Special Areas. In that particular case, the finding of the Federal Court was that once a Court is satisfied that a person is being detained under the Bengal State Prisoners Regulation (III of 1818), there is no jurisdiction under section 491, Crimi nal P. C., which the High Court can exercise in the matter. However, at page 12 of the published report the following observations occurs in the judgment of Spens, C. J.‑41 "Only one point, therefore, raised on behalf of the appellant in this case could, in our judgment, possibly have enabled the Court to exercise jurisdiction under section 491, and that was if in fact the appellant is a person to whom Regulation III does not or cannot apply at all". Their Lordships of the Federal Court therefore apparently visualised cases, despite the prohibition contained in sub section (3) of section 491 of the Code of Criminal Procedure in respect of persons detained under the Bengal State Prisoners' Regulation, 1818, in which the High Court could interfere, provided the question of jurisdiction was raised and subject of course, to the condition that the person concerned was within the local limits of the High Court's jurisdiction. The position in the present case appears to us to be analogous to that situation. In a Full Bench decision of this Court, in Criminal Mis cellaneous Case No. 193 of 1955 in re: ex‑Major General Muhammad Akbar Khan this Court held that despite a provi sion in the relevant enactment ousting jurisdiction of all Courts in respect of the Special Conspiracy Case proceedings, the constitutionality of the Act could be inquired into and if it was ultra vires the Constitution, the Court could issue, an order under section 491, Criminal P. C. in the nature of habeas corpus in respect of a person convicted by the Special Tribunal. Here again the rational of the decision was the want of jurisdiction of the Tribunal that tried the Special Conspiracy case prisoners. In our opinion, while deciding the present petition, we shall be exercising our jurisdiction under Article 170 not in relation to any Special Area but in relation to the area within our own jurisdiction inasmuch as the petitioners are now confined in a jail which is located within that juris diction. The case is, therefore, taken out of Article 178 in terms and the bar is no longer applicable. Illegal detention of: a person is a continuing wrong. If the petitioners had been retained in Loralai in a jail, obviously this Court could not have been approached for redress, but now that they are amenable to the jurisdiction of this Court and their jailor or keeper is also subject to the writ of this Court, there is no reason why the relief asked for should be denied to them. The ouster of jurisdiction of this Court in all cases, should not be lightly assumed. We are of the view that in cases of the present kind, Article 178 raises no bar to the exercise of our jurisdiction. The prayer with regard to the quashing of the conviction and sentences imposed on the petitioners, cannot, however, be accepted, and no writ of certiorari can issue, because such an order would come within the mischief of Article 178 of the Constitution. We, therefore, reject that prayer but there is no valid ground why this Court should not interfere in the interest of the liberty of two Pakistan citizens who are being detained under an illegal order within the jurisdiction of this Court. We, therefore, allow this petition and issue a writ in the nature of habeas corpus directing the release of the petitioners from their present custody for with. On the request of the learned Assistant Advocate‑General, we have directed the grant of a certificate for appeal to the Supreme Court, in view of the fact that an important question of the interpretation of Article 178 of the Constitution, is involved in this case. In view of the difficult nature of the question to be decided in the instant case, we leave the parties to bear their own costs. K. S. A. Writ of habeas corpus issued.