1976 PLP 520 (SCMR)

MUHAMMAD GUL, J.

This leave petition from the judgment of a Divi sion Bench of the Peshawar High Court dated 23‑4‑1974 raises the vexed question whether, the petitioner herein, who is a resident of Malakand Protected Area, where F. C. R. (19(11) was applicable, and who having been tried under that Regulation for an offence falling under section 302, P. P. C. and on being found guilty by the Council‑of‑Elders was sentenced by the Political Agent for imprisonment for life, which later being duly confirmed by the Commissioner, F. C. R., at a dime when the 1962 Constitution held the field, can now call in question his conviction and detention in the prison, by means of writ of habeas corpus? The necessary facts are these. Baghi Jan a resident of village Kpar what was then Protected Area of Malakand, lodged a report on 2‑12‑1976 with the Political Authorities of the Agency that his son Saleh Muhammad had been murdered on 30‑11‑167 by the petitioner herein and one Abdul Hakim, The Political Agent Malakand and Agency ride order dated 22‑1‑1968 referred the case against the two accused to the Council of Elders under section 11, P. C. R. In accordance with the recommendation of the Council‑of Elders the Political Agent by order dated 6‑4‑1968 acquitted Abdul Hakim but convicted the, petitioner under section 302, P. P. C. read with section 11, F. C. R. and sentenced him to 14 years' R. I. He further declared the petitioner an enemy of the complainant anti his relations and precluded him from residing in the area of Shah Kot after the expiry of his sentence. This order was duly confirmed by the Commissioner, F. C. R., Peshawar on 23‑11‑1968. In the meantime, two revisions moved before the Commissioner, one by the petitioner and the other by the complainant, were also dismissed by the same order, by the Commissioner. Since then the petitioner has been lodged in Central Jail, Peshawar. On 6‑1‑1969, the petitioner's son Sherzada moved a petition for habeas corpus under Article 98 against the respondent's order challenging the juris diction of Political Agent and the legality of the conviction and its confirma tion by the Commissioner. The two learned judges of the High Court, who heard the petition agreed to dismiss the same though for different reasons. Qaisar Khan, J. relying on the provisions of Articles 223 (5), 216 (7) and 247 (7) of the 1962 Constitution and following this Court's rent judg ment in Abdmr Rahira v. The Home Secretary (i) came to the conclusion that for the purpose of this case the High Court is altogether precluded from enter taining the writ petition. Abdul Hakim. (P L D 1974 S C 1019). on the other hand took the view at because of the Continuance of Proclamation of Rrn:4rgency at the relevant time, the right to move any Court for the enforcement of Fundamental Rights declared by Chapter I of Part II of the 1962 Constitution had been suspend ed and it has not been shown otherwise that there has been any violation of principle of natural justice, essential to the administration of criminal juice, nor there is any indication that the Political Agent, the Council of Elders or the Commissioner had in arty manner, exceeded their respective jurisdictions under F. C. R. under which the petitioner was tried. Convicted and sentenc ed arid that therefore, no case was made out for interference by the High Court In exercise of its writ jurisdiction, under Article 98 of the 1962 Constitution. In support of this petition, Dr. Abdur Rahim learned counsel for the petitioner made the following submissions:‑-- (i) That difference in the ratio of the judgments of the two learned Judges in the High Court verges on the conflict of opinion on to matter of law of general importance which per se is a sufficient reason for the grant of leave; (ii) that the Council‑of‑Elders was not properly constructed in that it was not presided over by a Magistrate. (iii) that as respects the un-expired portion of the sentences of the peti tioner, the matter falls to be governed under the present Constitution and subject to writ of habeas corpus of High Court : and; (iv) that in the matter of habeas corpus, the High Court jurisdiction it not circumscribed by the provisions of the Constitution and the matter being of germane to the liberty of the citizen, the High Court could in exercise of its inherent jurisdiction issue write habeas corpus, to satisfy itself that the petitioner in being detained under the authority of law. In my opinion there is no merit in any of the above submissions. The argument entirely overlooks the provision of Article 175(2) of the Constitu tion, which reads ; "No Court shall have any jurisdiction save as is or nay be conferred on it by the Constitution or by or under any law." This completely negatives the claim for any jurisdiction other than that which has been either conferred by the Constitution or by any law. For the purpose of this case as rightly pointed out by Qaisar Khan, J. the controversy 'has been set at rest by this Court's judgment in the case of Abdur Rahim, which was decided on the interpretation of Article 223 (5) of the 1962 Constitution. It was pointed out in that case that this clause which was inserted by the Constitution (1st Amendment) Art, 1963 (Act I of 1964), which incidentally also inserted in that Constitution, orders relating to Fun damental Rights and their enforcement by appropriate writs by the High Court, begins with non‑abstain clause in the beginning of Article 223(5) which reads: (5) Notwithstanding anything in this Constitution, neither the Supreme Court nor 'a High Court shall, unless the Center. Legislature by law otherwise provides exercise any jurisdiction under ibis Constitution in relation to s Tribal Area." The opening words give this clause an overriding effect over other provisions of the Constitution, including that relating to the writ jurisdiction of the High Court. Conversely, clause (2) of Article 98 of the 1962 Constitution, relating to the ambit of jurisdiction of the High Court began with the words: 'Subject this Constitution .. Accordingly, this provision on his own wording must also yield to the over riding provision of the Article 2.23(5) of the Constitution. The matter hardly admits of any doubt and therefore, need not be pursued further. As to the contention that the remedy by way of habeas corpus will be available to the petitioner as respect the unexpired portion of his sentence by reasons of his physical location ire the Central Prison at Peshawar, it is difficult to discover the basis of the argument. It is not suggested that reference by the Political Agent to the Council‑of‑Elders was without jurisdiction or, that, the Imposition of sentence by the Political Agent and its confirmation by the Commissioner F.C.R. in may manner defective The petitioner lodged in the Peshawar Central Prison under the warrant issued by the Political Agent, after the confirmation of the petitioner's sentence. This is "lawful authority" for h is detention. It is not right either to suggest that there is conflict opinion in the two judgments rendered it this case in the High Court. It may be that each learned Judge viewed the case from a different angle, but so long as the learned Judges agreed in the conclusion there is no question of any conflict of opinion. It is not reasonable to ingest that Abdul Hakim Khan, J, had opined that at the relevant time the High Court's writ jurisdiction extended to Malakand Protected Area, notwithstanding the provisions of Article 223(5) of the 196?. Constitution or other provision noticed by Qaisar khan; J. Once it is held (and no argument whatever, was addressed to the contrary) that the petitioner was tried, convicted and sentence by Courts of competent jurisdiction and that his conviction was not questionable under the 1962 Constitution, it cannot be questioned under the new dispensation. This is the effect of Article 264 of the present Constitution. Finally, no objection was taken in the High Court as to the formation of Council‑of Elders and therefore, it cannot be raised at this stage. For the foregoing reasons, I dismiss this petition. Petition dismissed