P L D 1969 Supreme Court 344 (PLP)

SAJJAD AHMAD, J.--‑This appeal, by special leave, from a decision of the High Court of West Pakistan, Peshawar Bench, raises the question whether the Writ Jurisdiction of the High Court runs in the Tribal Territories of Pakistan. The circumstances in which this question has arisen are as follows:- The appellants, Jamil Ahmad and Mir Zaman, who are residents of Sawabi in the District of Mardan, had entered into a business partnership with the respondent Masta Khan. There was a dispute between them over the partnership accounts leading to the institution of a civil suit for rendition of accounts by Jamil Ahmad on the 12th of April 1960, in the Court of Civil Judge, Peshawar. On the 3rd of July 1960, Masta Khan filed a counter‑claim for Rs. 40,000 before the Political Agent, Miranshah, under section 8 of the Frontier Crimes Regulation. This was later withdrawn as incompetent in view of the earlier suit filed by Jamil Ahmad in the Civil Court. Subsequently, on the 1st July 1961, Momit Khan respondent filed a complaint under section 420, P. P. C. against the appellants before the Political Agent, Miranshah, and obtained warrants for their arrest. The appellant moved the High Court in writ jurisdiction for the quashment of the warrants alleging that the complaint against them was utterly false having been manoeuvred by Masta Khan as a counterblast to Jamil Ahmad's civil suit against them. At the hearing of the petition a preliminary objection was taken by the Additional Advocate-General appearing for the State that since the warrants in question had been issued by A. P. O. Miranshah, North Waziristan Agency, which was a part of "Special Area" under the Constitution of 1956 and now a "Tribal Area" as defined in Article 242 of the Constitution of 1962, the High Court had no jurisdiction to enter into this matter either under the 1956 or the 1962‑Constitution. The 1956 Constitution was referred to as the writ petition in the High Court was filed on the 11th of April 1961, under Article 178, read with section 4 of the Laws (Continuance in Force) Order, 1958, before the enforcement of the 1962‑Constitution. The High Court upheld this objection on the 26th of May 1965, holding that: "The jurisdiction of the Court to entertain writ petition under the late Constitution and also under the present Constitution in matters relating to `Special Areas' or `Tribal Areas' which terms are synonymous is specifically barred under Article 178 of the late Constitution and Article 223 (5) of the present Constitution." The appellants sought a review of this order on the ground that President's Order No. 11 of 1961 entitled. "The Special Areas (Restoration of Jurisdiction) Order, 1961", by which the jurisdiction of the superior Courts had been extended to the Tribal Areas, was inadvertently not brought to the notice of the High Court at the bearing of the writ petition. This applica tion was dismissed on the 21st of December 1965, for the reasons, firstly, that the orders passed in writ jurisdiction were not subject to review, and, secondly, that Article 223(5) of the said Constitution expressly bars the jurisdiction of the superior Courts fn regard to matters relating to tribal territories. Leave to appeal was granted by this Court to consider the contention that the President's Order 11 of 1961, mentioned above, which had the effect of bringing "Special Areas" within the jurisdiction of superior Courts, was still in force as a Central Law, having been preserved by Article 223(1) of the Constitution. President's Order 11 of 1961, mentioned above, was issued by the President of Pakistan on the 4th day of July 1961, and was to come into force on a date to be notified by the Central Government in the official Gazette. The Gazette Notification in this respect was issued on the 12th of December 1961. 'Subsection (2) of section 2 of the Order which is relevant for the purpose of this appeal is as follows:-‑ The High Court of West' Pakistan shall exercise in relation to the territories comprised in the Special Areas or any part thereof the same jurisdiction as would have been exercisable by the High Court of West Pakistan on the 14th day of October 1955, if sub‑clause (i) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act, 1955, and Article 178 of the Constitution of the 23rd day of May 1956, had not been enacted." As regards the legislative measures mentioned in this provision, it may be recalled that under the Establishment of West Pakistan Act, which was enforced on the 14th of October 1955, amongst other territories the Tribal Areas of Baluchistan, the Punjab and the North‑West Frontier, and the States of Amb, Chitral, Dir and Swat, described in the Act as "Specified Territories" were incorporated in the Province of West Pakistan. Under section 7 of the same Act the High Court of West Pakistan was established by an Order of the Governor‑General (G. G. O. No. 19 of 1955‑High Court of West Pakistan Establishment Order, 1955). The High Court was thus established and the Judges thereto, were invested with territorial jurisdiction in relation to the whole of the newly‑integrated Province of West Pakistan, including the "Special Areas". By a subsequent amendment of section 7 of the Act introduced by section 2 of the Establishment of West Pakistan (Amendment) Act, 1955, "Special Areas" were excluded from the jurisdiction of the High Court with effect from the 14th of October 1955, that is to say, from the very date of the establishment of West Pakistan. Article 17,8 of the 1956--‑Constitution had similarly kept the "Special Areas" outside the jurisdiction of the High Court. "The effect of the President's Order No. 11 of 1961, stated above, was to restore this jurisdiction over these areas with effect from the 12th December 1961, expressly doing away with the Establishment of West Pakistan (Amendment) Act, 1955, and Article 178 of the 1956‑Constitution in this behalf. Nonetheless, the jurisdiction reported under this Order was short‑lived as it came to an end by the enforcement of the 1962‑--Constitution which was enacted on the 1st of March 1962, and enforced from the 8th of June 1962. Article 223(1) of the Constitution provides as follows:- "223(1). No Central Law shall apply to a Tribal Area or to any part of a Tribal Area unless the President so directs, and no Provincial Law shall apply to a Tribal Area or to any part of a Tribal Area unless the Governor of the Province in which the Tribal Area is situated, with the approval of the 'President, so directs, and in giving such a direction with respect to any law, the President or the Governor, as the case may be, may direct that the law shall, in its application to a Tribal Area or to a specified part of a Tribal Area, have effect subject to such exceptions and modifications as may be specified in the direction." Clause 5 was added to this Article by the Constitution First Amendment Act, 1963 (I of 1964), to the following effect:- "Notwithstanding anything in this Constitution neither the Supreme Court nor a High Court shall, unless the Central Legislature by law otherwise provides, exercise any jurisdic tion under this Constitution in relation to a Tribal Area." The learned counsel for the appellants, has argued that President's Order 11 of 1961 having been made by the President and not revoked, is a Central Law within the definition of that term in Article 242 of the 1962‑Constitution and must be enforced. Conceding that it is a Central Law in that sense and an existing law under Article 225 of the said Constitution, its continuance in force was subject to the relevant provisions of the Constitution. The plain requirement of Article 223(1), cited above, is that a Central Law shall operate in the Tribal territories, if so directed by the President under the {Constitution. It is not shown that this was done. Again, sub‑clause (5) stated above, which was added by the Constitution .Act I of 1964, by which fundamental rights had been made justiciable, leaves no manner of doubt that the intention of the 1962‑Constitution was to exclude the Tribal Areas from the jurisdiction of the High Courts in all respects till such time as the Central Legislature made a law to the contrary. If the intention had been to preserve the jurisdiction of the superior Courts under the President's Order No. 11 of 1961, there was no need whatsoever for the addition of this new clause in the Constitution. Under this clause the jurisdiction of the High Court shall prevail in the Tribal territories only if the Central Legislature by law so provides and not otherwise. Central Legislature is described in Article 19 of the 1962‑Constitution to consist of the President and one House known as the National Assembly of Pakistan. President's Order No. 11 of 1961 is not a law of the Central Legislature, not having been passed by the National Assembly and assented to by the President. At best, it is a Central Law passed by the President himself, which, as already stated above, was not applied to Tribal territories under the 1962‑Constitution. Not being a law of the Central Legislature. It loses its efficacy under clause 5 of Article 223, cited above. It is significant to note here that the Central Legislature did enact a law called "The Tribal Areas. (Restoration of Jurisdiction Act, 1964 (Act II of 1964)", published to the Gazette of Pakistan on the 10th of April 1964, whereby the jurisdiction of the Supreme Court and the High Court was restored in relation to the tribal areas of the Quetta Division. As no such law has been introduced in respect of the tribal area included in North Waziristan Agency, obviously the writ of the High Court did not run into that territory. Vide our order dated the 9th of December 1968, we issued a notice to the Attorney‑General to address us on the Constitutional issues involved in this case. He has maintained very rightly by reference to the Constitutional provisions that in the absence of any Act of the Central Legislature, the writ jurisdiction of the High Court does not extend to the tribal territory relevant in this case, namely, that of North Waziristan Agency. It has been further pointed out by him that by a Notification No. 8‑W dated the 3rd of September 1939, issued under section 313 of the Government of India Act, 1935, the then Government had invested the Assistant Political Agents, Tehsildars and Naib‑Tehsildars working in the tribal areas, with powers of Magistrates of the First Class, under the Criminal' Procedure Code and the same situation obtains now. The impugned warrants in this case were issued by the A. P. O. in exercise of his powers as a Magistrate of the First Class. Re sent them for execution to the District Magistrate, Mardan, which he could competently do under section 83 of the Criminal Procedure Code. The issuance of the warrants by him which was done at Miranshah and the request for their execution sent to the District Magistrate, Mardan, for service on the appellants who were residents of that district, therefore, did not lack the legal authority. In the writ petition the appellants ha& asked for the following reliefs:- (1) for quashment and nullification of the warrants of arrest, issued against them by the A. P. O., Miranshah;. (2) for directing the respondents 5 and 6, namely, the Superintendent of Police, Peshawar and the Superintendent of Police, Mardan, not to execute the warrants of arrest against them; and (3) for quashment of the proceedings started against; them by the Assistant Political Officer, Miranshah. As all these actions took place in the tribal territory of Miranshah, including the order for the execution of the warrants which was lawfully made the jurisdiction of the High Court was clearly barred for any redress against those actions. It was rightly conceded by the learned Attorney‑General on the basis of the decisions of this Court in the cases of Piao Gul v. The State (P L D 1960 S C 307) and Sar Khan v. The State (P L D 1967S C 149) that if the cause of action had arisen to the appellants within the territorial jurisdiction of the High Court, for instance, if they had been arrested or detained within those territories without a lawful authority, the High Court would certainly have had the juris diction to interfere in writ jurisdiction to examine the legality and the lawful authority for that action. As this is not the position in the present appeal and all the impugned actions were taken in the tribal territory, they were not amenable to the writ jurisdiction of the High Court. We would, therefore, dismiss this appeal without making any order as to costs. K. B. A. Appeal dismissed.