P L D 1956 (W (PLP)

KAYANI, J.‑--The questions referred to the Full Bench are: (1) Whether the former "Leased Areas" of Baluchistan, form part of the Province of West Pakistan, and (2) Whether the High Court of West Pakistan has juris diction over the former "Tribal Areas" of Baluchistan. Our answer to the first question is in the affirmative, to the second in the negative. The reference is occasioned by two cases, one from Loralai district under the Passport Act, the other a murder reference from Quetta district. Undoubtedly, Loralai is one of the "tribal areas" and Quetta one of the "leased areas". The admitted facts are that when Pakistan came into being in 1947, Baluchistan had four different assortments of territory, namely, (1) the British Baluchistan, a Chief Commissioner's Province, consisting of the districts of Pishin and Sibi and Duki tahsil of Loralai district; (2) the tribal areas, comprising the districts of Kohlu and Murri Bugti, Loralai, Zhob and Dalbandin, including Western Sinjawi country, being subject to treaties and agreements between the British Government on the one hand and the Sardars and Maliks on the other; (3) the leased areas, consisting of the districts of Quetta and Bolan, the Nushki tahsil and the Nasirabad subdivision, all these being part of Kalat State, acquired in 1883 and later by an agreement with the Khan of Kalat ; and (4) the States of Kalat, Mekran, Las Bela and Kharan. In 1952, these four States were merged into the Baluchistan States Union, "comprising the territories of our respective States"‑so said the rulers thereof, in their covenant "with a common executive, legislature and Judiciary." Six months later, the Union acceded to Pakistan and agreed that "the Constitution of Pakistan to be framed by the Constituent Assembly of Pakistan shall be the Constitu tion for the Union." Until 1937, there was no distinction between the tribal and the leased areas. They were both administered by the Chief Commissioner of British Baluchistan in his capacity as Agent to the Governor‑General under the Baluchistan Agency Laws Law, 1890‑a curious name for an Act‑and certain laws were made applicable to it in exercise of powers under the Indian (Foreign Jurisdiction) Order in Council, 1902. The definition of "tribal areas" in section 311, Government of India Act, 1935, as "the areas along the frontiers of India or in Baluchistan which are not part of British India or of Burma or of any Indian State or of any foreign State", however would appear to envisage a distinction, for although by these leases the Khan "makes over and entrusts the entire management of the Quetta district and Niabat absolutely and will all the rights and privileges as well as full revenue, civil and criminal jurisdiction and all other powers of administra tion to the British Government so long as the Khan received "a fixed annual rent", and the land consequently belonged to the State, it was excluded by the definition. In 1937, therefore the Governor‑General, in exercise of powers under section 313, Government of India Act, issued two notifications in identical terms, one in relation to "tribal areas", the other in relation to "leased areas", declaring certain laws applicable to both and specifying the areas in question in a Schedule appended to each notification. In 1940, they were created into separate sessions divisions, and the position before the establishment of the West Pakistan Province was that they were under a regular judicial administration with a Judicial Commissioner at its head. It was in this context that Baluchistan and other Provinces of the western wing were integrated into the Province of West Pakistan. This, by section 2 of the Establishment Act 1955, was to comprise "the territories which . . . . . . were the territories of‑-- (i) the Governor's Provinces of the Punjab, the North West Frontier and Sind, (ii) The Chief Commissioner's Province of Baluchistan and the Capital of the Federation, (iii) the States of Bahawalpur and Khairpur and the Baluchistan States Union, and the Tribal Areas of Baluchistan, the Punjab and the North‑West Frontier, and the States of Amb, Chitral, Dir and Swat." The territories falling under the fourth category were called "special areas", to be administered by Regulations or by such laws as the Governor might apply to them with the Governor‑General's approval. By section 10, however, the laws hitherto applicable to these areas were saved. Section 7 gave power to the Governor‑General to establish a High Court for the new Province "to replace the High Court in Lahore, the Chief Court of Sind and the Judicial Commis sioner's Courts in the North‑West Frontier Province and Baluchistan and any other Court functioning as High Court for any other specified territories", to exercise jurisdiction in the whole Province "except the special areas". The definition of "tribal areas" in the Government of India Act was deleted at the time of the Partition and the Establishment Act did not attempt any definition. The term, however, is so well understood that it is beyond contentions that the areas which lie within the external frontiers of Pakistan but which belong neither to a Province nor to an acceding State are tribal areas. They were described in the above terms in a notification of the 27th June 1950 by the Ministry of States and Foreign Regions (No. F. 9 (170)‑F/48), though on the 15th August 1947 when the first Governor General of Pakistan announced the continued enforcement of the laws already in force in these areas, they described merely as "tribal areas." Even then, however, a distinction was drawn between these areas and the "areas of Baluchistan leased by the Khan of Kalat to the British Government", for, in respect of the latter, another order was made on the same day announcing an agreement with the Khan on the old terms. There is, consequently, no doubt that Loralai lies within what has been described in section 2 as the tribal area of Baluchistan, and since the jurisdiction of the High Court is excluded from these areas, the answer to the second question is in the negative. We do not, however, think this was intentional, because the effect this to Loralai and other tribal areas, and the Sessions judge and other judicial officers continue to exercise jurisdiction, the right of appeal or revision to the High Court is taken away. We believe the intention was to exclude the High Court from the tribal areas of the North‑West Frontier and the four States of Chitral, Swat, Dir and Amb, and that the tribal areas of Baluchistan, so long accustomed to judicial administration, were inadvertently excluded. We have seen that since 1937 a distinction has been recognized between the tribal and the leased areas. The latter clearly are areas which the Khan of Kalat had leased to the British and in respect of which be agreed to continue the lease with Pakistan. These cannot, therefore, be included in the tribal areas falling under category (iv) of section

2. If anywhere, they should fall in category (iii)‑‑the Baluchistan States Union‑because the Union now includes the territory of Kalat, and the leased areas, although administered by Pakistan more or less oil a perpetual basis, are nevertheless "leased areas" and not permanently ceded. If Pakistan were to renounce the lease and give up the administration of these areas, they would revert to Kalat, and by Article VII of the Covenant which brought about the Union, all rights" of the Ruler pass to the Union, while all the "assets" of the State shall be the assets of the Union. Now, since the fixed annual rent which the Ruler received is an asset of the State, if it passes to the Union, the reversionary right of the Ruler in the leased area also passes. This is enough to show that the leased areas are still the territories of Kalat State, and if the Establishment Act says that the new Province shall include the territories of Kalat State, it should be understood to include the leased areas. The intention to include is in fact at no stage in doubt. Section 11 of the Act provides for an Interim Legislature, composed of members as provided in the Second Schedule, and the Second Schedule gives two members to Quetta‑Pishin, excluding the municipal and cantonment areas of Quetta, one member to the municipal and cantonment area, and one to Loralai (tribal area). It is certainly a bad argument to say that while Quetta was to be represented on the legislature of the Province, it was not to form part of the Province. We, therefore construe the words "territories of the Baluchistan States Union" as intended to include the leased areas, and answer the first question in the affirmative. A. H. Reference answered.