1998 P Cr (PLP)

NASIR‑UL‑MULK, J.‑‑‑ The petitioners, six in number, residents of Urmar Payan, Tehsil and District Peshawar had entered into some business deal with Gul Alain and Malook Khan, residents of Khyber Agency. Gul Alain on 3‑10‑1994, made a written complaint to the Assistant Political Agent praying that Rs.7.00,000 owed by the petitioners to 'him regarding a transaction over a vehicle be recovered from them. The Political Authorities of Khyber Agency initiated proceedings against the petitioners, culminating into the issuance of a warrant of their arrest. The warrant was executed, the petitioner was arrested and his bail application before the Magistrate turned down. However, the Additional Sessions Judge admitted the petitioner to bail on the ground that the dispute is of civil nature. Despite the grant of bail, yet another warrant of arrest was issued against the petitioner. At the same time an inquiry was also undertaken by the Magistrate under section 86‑A, Cr.P.C. for the removal of the petitioner to the tribal area. The petitioners have assailed the issuance of warrant of arrest by the Assistant Political Agent, Khyber Agency and the inquiry under section 86‑A, Cr.P.C.

2. The learned counsel appearing for the petitioners referred to two judgments of this Court Nabi Bakhsh and another v. The State through. Collector, D.I. Khan and others PLD 1991 Pesh. 10 and Zareef Khan v. Sessions Judge, Peshawar and others PLD 1995 Pesh. 118 and submitted that the case was purely of civil nature and, therefore, the warrants of arrest issued by the Political Authorities could not be executed under section 86‑A, Cr.P.C: The learned Assistant Advocate‑General in his response contended that this Court cannot, in Constitutional jurisdiction, determine the factual controversy as to whether the Court in Peshawar District, where the agreement was executed and the defendants reside, or the judicial forums in the tribal area, where respondents Nos.7 and 8 reside, will have jurisdiction over the matter.

3. To dispose of the writ petition it is not relevant to decide as to which Court will have jurisdiction to decide the dispute between the parties. We are only concerned with the question as to whether warrant of arrest can be executed in view of the provisions of section 86‑A, Cr.P.C. which provides that a person can only be removed to tribal area if there is, prima facie, evidence of the commission of a crime by him in the tribal area. We only have to refer to the comments of respondent No.2, the Assistant Political Agent, to resolve the issue. In the last para under note brief facts, the respondents stated "that this matter is of civil nature but in view of the constant absence of the petitioner's party, warrant of arrest under section 419/420, P.P.C./8, F.C.R. was issued by the Court of A.P.A./A.D.M., Jamrud at Khyber House, Peshawar Cantt." As respondent No.2 himself admits that the dispute between the parties is of civil nature, the Magistrate has no authority to exercise powers under section 86‑A, Cr.P.C. as the petitioners can only be removed if they are charged for the commission of a crime. Failure to attend the Court in civil cases is definitely not a crime for which warrant of arrest can be issued. At best, the Tribunal can proceed ex parte if the defendants failed to appear.

4. It thus, follows that since failure of the petitioners‑to appear before the A.P.A. did not constitute a crime, warrant of arrest, issued by the Political Authorities, could not be executed at Peshawar under section 86‑A, Cr.P.C. The', writ petition is, therefore, allowed and the proceedings under section 86‑A, Cr.P.C. pending before the Magistrate are set aside and it is directed that the warrants of arrest issued by respondent No.2 shall not be executed within the jurisdiction of this Court. There shall be no order as to costs. H.B.T./44/P Petition allowed.