P L D 2014 Peshawar 132 (PLP)

MIAN FASIH-UL-MULK, C.J.

In this Constitutional petition and other connected writ petitions, the question raised for determination of this Court is with regard to the jurisdiction of this Court to Federally Administered Tribal Areas (FATA).

2. In that, some of the petitioners have sought indulgence of this Court to be treated, as civil servants working in FATA either on deputation or appointed there by the Federal or Provincial Governments; some of the persons have been detained by the political authorities under the FCR and have sought relief from this Court against their illegal detention; and some of the persons who have entered into contracts with Government agencies for carrying out developmental works in FATA, are aggrieved of the disputes arising out of said contracts.

3. The other side has raised the question of jurisdiction of this Court to FATA in view of the bar contained in Article 247(7) of the Constitution.

4. Earlier, in a similar nature Writ Petition, titled Hanif-ur-Rehman v. Government (Writ Petition No.969 of 2010) the petitioners being employed on contract basis in FATA Secretariat had sought their regularization of services under the N.-W.F.P. Employees (Regularization of Services) Act, 2009. The writ petition was allowed and it was directed that their services shall be deemed to have been regularized under the said Act. The Additional Chief Secretary (FATA) filed C.P.L.A. before the apex Court. Leave was granted and the matter was decided on 30-5-2013 with the observations that let the writ petition should be re-heard by a three Member Bench of the High Court, as the High Court ought to have also examined case of petitioners under the Policy of the Federal Government.

5. Accordingly, a larger Bench of three Members was constituted by the then Hon'ble Chief Justice and the matter was re-heard on 7-11-2013. The writ petition was again allowed and services of all the petitioners including those, who were similarly placed and serving on contract basin in the FATA Secretariat were ordered to be deemed regularized in light of the Cabinet decision conveyed to FATA Secretariat.

6. On 18-2-2014, when instant writ petition along with other connected writ petitions came up for hearing before a learned Division Bench of this Court, it was found that although vide judgment in Writ Petition No.969 of 2010, this Court has assumed the jurisdiction; but the question of Article 247(7) of the Constitution of Islamic Republic of Pakistan, 1973 was not discussed being of prime importance. It was felt necessary that all identical cases involving similar questions should be heard and decided by a larger Bench. This larger Bench is now seized of the matter to determine the question of jurisdiction of this Court to FATA in the light of bar contained in Article-247 of the Constitution of Islamic Republic of Pakistan.

7. Keeping in view the substance of the matter raised in the writ petitions, the following eight (8) points were formulated upon which Barrister Zahurul Haq Qazi Muhammad Anwar, Mr. Abdul Latif Afridi, Mr. Abdul Samad Khan (Bannu), Mr. Wali Khan Afridi, Mr.Tariq Khan Afridi and Mr. Imtiaz Ali advocates were also asked to give their assistance as amici curiae:-- (1) Federal and Provincial employees working in FATA on Deputation. (2) Federal Government Employees posted in FATA. (3) Employees recruited for FATA. (4) Illegal detentions by officers in FATA. (5) Decisions of Tribunals in Civil and Criminal cases. (6) If the cause of action arisen/accrued in the settled area but the proceedings have been carried out by the political authorities. (7) If the cause of action has arisen in FATA between a person belonging to the settled area; and, (8) Contractual obligations arising in FATA between Government functionaries and private persons.

8. The judgment in Writ Petition No.969 of 2010 was delivered on 7-11-2013 at a time when the two judgments of the august Supreme Court of Pakistan in the cases of Additional Chief Secretary (FATA) and others v. Piayo Noor (2014 SCMR 17) and Mst. Rohaifa through her sons and another v. Federation of Pakistan through Secretary, Ministry of Defence and 2 others (PLD 2014 Supreme Court 174) were not yet published in the law journals nor were brought into the notice of the three members Bench at the time of hearing the matter.

9. It was in this background when the learned amici curiae while rendering assistance to this Bench referred to the above two judgments of the apex Court and stated that almost all the questions formulated in the case have been answered by their lordships of the august Supreme Court of Pakistan.

10. In the case reported in 2014 SCMR 17, the respondent was proceeded against by the political authorities under the provisions of Frontier Crimes Regulation, 1901 (FCR) being a hardened and desperate criminal. The respondent had filed Writ Petition No.2100 of 2008 before this Court challenging his detention and trial under the FCR but the writ petition was dismissed on 28-1-2009 being not maintainable. The respondent filed another Writ Petition bearing No.569 of 2009 without making any reference to the dismissal of his earlier writ petition, which was partially allowed and respondent was admitted to bail on the ground that there was no material on record to show that the respondent was involved in kidnapping or other cognizable offence. This order was impugned by the Additional Chief Secretary, FATA before the apex Court and leave to appeal was granted on 25-3-2010. The matter was decided vide judgment dated 23-5-2013 wherein it was laid down that respondent was resident of the Tribal Area and was being tried by the Council of Elders for various crimes mentioned in the Reference sent by the Assistant Political Agent under section 11 of the FCR. The High Court, while allowing bail to the respondent, did not refer to any case-law on the point of jurisdiction of the Superior Courts in matters relating to the Tribal Areas. The learned Bench of the august Supreme Court of Pakistan while considering the judgments reported in PLD 1974 SC 109, PLD 1975 SC 66, 1991 SCMR 2400, Civil Appeal No.144 of 1981, PLD 2002 SC 526, 2012 MLD 503(Peshawar), PLD 2011 Peshawar 164, 2009 YLR 2497, PLD 2006 Peshawar (sic) 1999 MLD 2661 (Peshawar), 1999 MLD 840 (Peshawar), PLD 1997 Peshawar 132, 1997 MLD 152 (Peshawar), 1996 CLC 1702 (Peshawar), 1992 MLD 2043 (Peshawar), PLD 2012 Balochistan 197 held that:-- "The foundation for the jurisdiction of the Courts has been laid down in Clause (1) of Article 175 of the Constitution. Couched in the negative term it declares "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." The constitutional jurisdiction of the High Court is embodied in Articles 199 and 203 of the Constitution. Where the latter provision confer upon it supervisory jurisdiction over the Courts subordinate to it, Article 199 empowers the High Courts to issue writs of various forms under its original constitutional jurisdiction. The said Article open with the words "Subject to the Constitution", a High Court may, if it is satisfied that no other adequate remedy is provided by law". The expression "Subject to the constitution for the present purpose would mean subject to the ouster Clause (7) of Article

247. Like Clause (1) of Article 175, Clause (7) of Article 247 also opens with the negative expression that "neither the Supreme Court nor a High Court shall exercise any jurisdiction...." Thus where a matter relates to a Tribal Area, the jurisdiction of the High Court under Article 199 is ousted whether the grievance brought before the Court is based upon violation of fundamental rights or of any other law ...... ....In view of the above provision the High Court however is not barred from examining whether the provision of section 86-A, Cr.P.C. has been complied with where it is alleged that a person has been arrested in the Settled Area and transferred to the Tribal Area to face a criminal charge without producing him to the Magistrate. It, however, will be for the aggrieved person to show that he was arrested from the Settled Area. The jurisdiction of the Magistrate under section 86-A, Cr.P.C. or for that matter of the High Court is limited to the question of arrest of a detenu. Where, however, the violation of section 86-A, Cr.P.C. is neither alleged nor established and the crime statedly is committed in the Tribal Area or where the subject matter of the civil dispute is located in the said Area the jurisdiction of the High Court to entertain petition under Article 199 is excluded."

11. In PLD 2014 Supreme Court 174, the petitioner was widow of one Syed Zain ul Abideen, a resident of Lahore and had prayed as under:-- "It is, therefore, humbly prayed that in the circumstances given herein above this Hon. Court may very graciously be pleased to call for the whole record of the proceedings conducted so for and; (a) direct the respondents to file a complete report before this Hon, Court about the deaths of the three detenues, namely Muhammad Aamir, Tehsin Ullah and Said Arab and the proceedings of trial so far conducted against them and the other surviving detainees; (b) call for the whole record of proceedings and determine, in view of the laws of the land whether the detenues, namely Syed Abdus Saboor, Syed Abdul Basit, Syed Abdul Majid and all the deceased and the surviving detenues were/are subject to Army Act; (c) if the detenues are subject to Army Act, declare that the arrest and detention and the proceedings of trial are not in a lawful manner and direct the respondents to set the detenues at liberty in the interest of justice and fair play, in case, after probe, it is found that the arrest and proceedings have not been conducted in accordance with law; (d) declare that the detenues were in illegal confinement and subjected to torture; (e) Any other relief this Hon. Court deems proper may also be granted." Their lordships were of the view that jurisdictional question in terms of Article 247(7) of the Constitution has successively come up before the Supreme Court on which judgments have been given. Accordingly, the judgments rendered in the cases of Qaum Bangash and others v. Qaum Turi and others (1991 SCMR 2400), Shukat Khan v. Assistant Political Agent, Landi Kotal, Khyber Agency and others (PLD 2002 Supreme Court 526), Abdul Rahim and others v. Home Secretary, Government of West Pakistan and another (PLD 1974 Supreme Court 109), Malik Taj Muhammad and another v. Bibi Jano and 25 others (1992 SCMR 1431), Muhammad Siddiq and others v. Government of Pakistan and others (1981 SCMR 1022), and Ch. Manzoor Elahi v. Federation of Pakistan and others (PLD 1975 Supreme Court 66) were again examined and it was finally concluded that so far as the application of the jurisdiction of this Court in terms of Article 247(7) of the Constitution is concerned, as per consensus of the Judgments of this Court, the bar of jurisdiction on this Court in terms of Article 247(7) of the Constitution will be applicable where cause of action and subject matter of dispute is in the Tribal Area and the parties to the dispute are also residents of Tribal Area and in terms of the Judgment in the case of Ch. Manzoor Elahi, supra, that if a person voluntary goes to a Tribal Area and commits offence there he on general principle of law is liable to be tried and punished according to law, custom and usage which prevails there but jurisdiction of the Supreme Court and that of the High Court will not be barred under Article 247(7) of the Constitution rather the same will be available to be exercised under Article 184 and Article 199 of the Constitution:-- (i) Where location of the corpus in dispute is situated in the territory outside the Tribal Area; (ii) Where parties to the dispute have their residence outside the Tribal Area; (iii) Where cause of action has arisen outside the Tribal Area; (iv) Where the offence has taken place outside the Tribal Area; (v) Where the arrest is made or sought to be made which is outside the Tribal Area; (vi) Where effective action or step is taken or performed outside the Tribal Area.

12. In so far as this Court is concerned, every principle of law laid down by the Hon'ble Supreme Court of Pakistan has force of binding precedent under the provisions of Article 189 of the Constitution.

13. Now, we would like to reproduce the crux of the arguments advanced by the learned amicus curiae on the points formulated in the case.

14. Barrister Zahurul Haq, advocate referred to the recent judgments of the apex Court; 2014 SCMR 17 and PLD 2014 SC 174 and stated that the six points formulated in the judgment reported in PLD 2014 SC 174, have thoroughly resolved the controversy involved in this case. Further stated that same view has been expressed by his lordship Mr. Justice Nasir-ul-Mulk in the judgment reported in 2014 SCMR 17, wherein all the judgments delivered by the superior Courts on the point have been covered. The judgment in the case of Manzoor Ilahi has been distinguished and in the light of these two judgments, the Hon'ble Supreme Court as well as the High Courts will have no jurisdiction to exercise their constitutional jurisdiction in matters which are in relation to the tribal area. If the corpus of dispute relates to the tribal area, then jurisdiction of Supreme Court and High Courts would not extend but when the cause of action has arisen outside the tribal area, then the issue is such which is to be looked into in the facts and circumstances of each case.

15. For illegal detentions, section 86-A, Cr.P.C. is there and a person of settled area cannot be dragged to the tribal area unless the requirements of section 86-A, Cr.P.C. are fulfilled before the Magistrate.

16. The learned counsel stated that contract is between two persons with consent. Government contract is signed by the Head of the Department on behalf of the Government. If this contract is pertaining to the construction of a building in the tribal area, then Article 247 would come into operation and the aggrieved party cannot come to this Court. If the contractual performance has been carried out in the settled area i.e. opening of tenders and fulfillment of other formalities at Peshawar even if the corpus is located in the trial area, then it would depend on the facts and circumstances of each case because one particular formulation is not possible in this regard.

17. This Court can adjudicate upon the matters of an employee who is on deputation to the tribal area, or is an employee of Federal or Provincial Government posted in FATA because their services are governed by the Civil Servants Act. The employees recruited for FATA cannot seek relief from this Court because there is no rule of law in FATA and obviously their appointing authorities would be in FATA. If a tribal man commits offence in the settled area, he cannot say that he cannot be tried by the Courts in the settled area. The order passed in the settled area in relation to the tribal area cannot be interfered with by this Court. Under the FCR, Tribunal has been established, which is a final forum for giving verdict over the decisions of forums under the FCR and this Court cannot entertain the matter.

18. Mr. Wali Khan Afridi, advocate referred to the authorities published in PLD 1997 Peshawar 132, 2005 CLC (Peshawar) 1392, PLD 1991 Peshawar 10 and 2003 YLR 1975 and stated that under Article 199 there is no embargo that a tribal man would not be entitled to the fundamental rights as there is no boundary for its exercise; hence this Court can exercise jurisdiction if question of fundamental rights arises in case of a citizen of Pakistan including tribal person. He answered all the questions in the affirmative and stated that this Court has got the jurisdiction because one clause of an Article of the Constitution cannot overrule the entire Constitution.

19. Qazi Muhammad Anwar, advocate submitted that as far as the employees of Federal and Provincial Governments are concerned, the word "Service of Pakistan" is defined in Article 260 of the Constitution, therefore, by mere posting of an employee in FATA, he would not cease to be employee of the Government, as his terms and conditions of employment would remain the same. Thus, a Federal Government employee would remain employee of the Federal Government and a Provincial Government employee would remain employee of the Provincial Government. Tribunal has been established for redressal of their grievances under Article 212 of the Constitution. Posting on deputation is for a limited period and after expiry of requisite period the employee comes back to his parent department. While placing reliance on the judgment of 2014 SCMR 17 he stated that in this judgment entire case-law right from the case of Manzoor Ilahi up to the case of Shamsuddin has been considered. However, in case a person is employed by a Political Agent for tribal area in that case he would go to SAFRON because that would be an employment in the FATA and the appointing authority being FATA, he would not be an employee of the Federal/Provincial Governments.

20. The fourth question, according to him, also finds its answer from the judgments of the apex Court reported in 1991 SCMR 2400 and 1981 SCMR 1022. Further contended that Section 8 of the FCR relates to civil jurisdiction and Section 11 FCR relates to criminal jurisdiction. Council of Elders and Procedure is contained therein. Now a Tribunal called the FCR Tribunal has also been established by the legislature, which is a final forum for resolving the disputes amongst tribal people. This Court would have no jurisdiction, when there are forums for civil and criminal matters in the re-promulgated FCR. It would, however, be another question if the composition of Tribunal; qualification of members and their standing are questioned/challenged before this Court, otherwise the decision of Tribunal cannot be challenged.

21. Mr.Abdul Latif Yousafzai, Advocate-General with regard to the question that if part of the action arises in the tribal area and part of the action arises in the settled area placed reliance on two judgments; 1981 SCMR 1022 and PLD 1991 Peshawar

10. He further referred to PLD 2014 SC 174 Head Note "C" and stated that the determining factor is that if the whole action has taken place in the tribal area, then the Supreme Court and High Courts would be having no jurisdiction. If a case is decided upto the level of FCR Tribunal, then this Court has also no jurisdiction. Status of Federal Government employees is governed under the Civil Servants Act, 1973. Under Section 2 thereof the words "wherever they may be", have been used, which makes it clear that even if they are performing their duties in the tribal areas, they would remain civil servants, for whom the parent law would be that of Civil Servants Act, 1973. If a person is employed for FATA under some law, then the concerned authorities would be competent and if there is no law then the law of master and servant would be applicable. Learned Advocate-General referred to 2012 PLC (C.S.) 54, 2012 MLD 503 (citation-b) and stated that these questions have already been settled by the superior Courts. According to his opinion, parameters have been provided by Constitution for assumption of jurisdiction and if Constitution has provided a bar, the same can only be removed by the legislature.

22. Mr. Abdul Latif Afridi, advocate stated that deputation is something subsequent. First a person becomes a civil servant and then the borrowing and lending departments agree that an employee should be sent to FATA. An employee is an employee whether he is provincial or federal, and this Court has jurisdiction to entertain their cases. Those employees, who are paid from permanent budgetary allocations, they are civil servants. However, posts filled up from contingencies, not permanent, with no certain rights, they could not avail their remedy before this Court. So the employees in questions Nos.1 and 2 enjoy their rights as civil servants and cannot be denied their rights, if come before this Court. About illegal detention, he submitted that if the detenue belongs to FATA and he is detained by FATA functionaries, this Court would have no jurisdiction.

23. Under the FCR, powers have been given to the authorities to deal with civil and criminal matters of tribal people. However, if a person belongs to settled area and goes to tribal area, where he is detained, then this Court in view of the authority PLD 1975 SC 66 has the power to entertain the matter. If a person is arrested from the jurisdiction of the High Court and taken somewhere else, in that case too jurisdiction of the High Court would extend. When a citizen is arrested, he cannot be removed from settled area to tribal area unless the requirements of Section 86-A Cr.P.C. are fulfilled. He referred to 2002 PCr.LJ 1703 and PLD 1981 SC 1022. Further stated that if contract is signed here, money flows from here and the contract is executed in the trial area, this Court would have jurisdiction to look into the matter. Assistant Political Agents, Political Agents, Commissioners and Tribunal under the FCR have specified jurisdiction and this Court would have no jurisdiction in view of the verdicts pronounced in the judgments reported in PLD 1975 SC 66, 1979 SCMR 400 and PLD 2004 SC

907. Question No.6 finds its answer from the judgment of Justice Tallat Qayyum Qureshi, reported in PLD 1981 Peshawar(sic). According to him, discrimination under Articles 4, 5, 25 is there with the tribal people but unless Article 247(7) is not removed from the Constitution by the Parliament, the miseries of tribal people would remain to continue with regard to the fundamental rights guaranteed by the Constitution to its citizens.

24. Mr.Tariq Afridi, advocate, referred to Articles-199 and 192(4) and stated that FATA is not part of the Province and would require an Act of Majlis-e-Shoora for making it a part of this Province. If rights of a person are violated within the territorial jurisdiction of this Court, this Court has the jurisdiction. This Court can direct the federation to amend the said clause. Under Article 192 of the Constitution, jurisdiction of the High Court can be extended by Act of Majlis-e-Shoora (Parliament) to any area in Pakistan not forming part of a Province. The learned Amicus Curiae Barrister Zahurul Haq at this stage stated that if there is an ambiguity in the two provisions of the Constitution, this Court can give advice to the legislature that such a clause renders certain other provisions of the Constitution as ineffective. On query of the Court, how this Court can give advice to the Parliament, he referred to Article 267-A of the Constitution and stated that this Court can give such advice to the Majlis-e-Shoora. With regard to the period of one year mentioned in this Article, it was stated that if a particular thing is not done within a particular period, it would not invalidate the provision. Reliance was placed on PLD 1992 SC 595 and PLD 1998 SC 1263.

25. Mr. Tariq Afridi, advocate referred to the word "citizen", used in Article-260 of Constitution and Pakistan Citizenship Act, 1951 and stated that on one hand, the Constitution gives fundamental rights to all the citizens of Pakistan but at the same time these rights have been taken away under Article 247(7) of the Constitution. He referred to Article 8(2) of the Constitution and stated that this Court can see if any law made by the State takes away or abridges the rights so conferred in contravention of this clause and for that purpose this Court can advise the Majlis-e-Shoora (Parliament) to remove the inconsistency in between the two Articles of the Constitution.

26. Mr. Imtiaz Ali, advocate submitted that under Article 199 the jurisdiction of this Court has been limited to the territorial jurisdiction. If the political authorities perform their functions under the FCR, this Court has no jurisdiction. Even if Article 247(7) is excluded from the Constitution, in that case too the issue will remain there because territorial jurisdiction of this Court would require to be extended to such territory. He placed reliance on PLD 2014 SC 174 and stated that almost all the questions have been covered in this judgment. About illegal detention it was stated that if cause of action arises within the territorial jurisdiction of this Court, this Court would be having jurisdiction.

27. The learned Deputy Attorney-General also relied upon the case reported in 2014 SCMR 17 and stated that judgment of the Supreme Court is binding on this Court.

28. On the other hand, crux of the arguments of learned counsel for petitioners was to the following effect:-- This Court should issue directives to bring the FCR, 1901 in conformity with the Constitution so as to bring the discriminatory provisions of the FCR under the umbrella of laws prevalent in the rest of the country. FCR is discriminatory, un-Islamic and against fundamental rights enshrined in the Constitution of Pakistan as well as against the Charter of United Nations Human Rights. The residents of FATA are Pakistanis like other citizens under Article 1 of the Constitution and have got legal rights to be treated at par with other citizens. They pointed out that fundamental human rights enshrined in Articles 4, 8, 9 and 25 of the Constitution were being denied to the residents of FATA who are equal citizens of the country. The government is misusing the FCR for the aggravated law and order situation in the country and that various superior courts have declared FCR as a discriminatory law. Certain political administrations have detained hundreds of tribesmen by misusing Section 21 of the FCR. They said that several law commissions, set up both on federal and provincial level, had also examined the regulation and recommended its repeal. There is a growing realization, that decades-old practice of using religion for political gains resulted in the rise of extreme religious and linguistic groups in the country, systematically leading to denial of fundamental rights; hence residents of FATA are forced to think if they are considered human beings by the Constitution or otherwise, whereas under Article 1 of the Constitution they have been defined as citizens of Pakistan. The residents of FATA be equated with normal citizens of Pakistan and the FCR introduced in 1901 be brought in conformity with the mainstream of the Constitution and the discriminatory provisions of the law should be brought under the umbrella of normal laws of justice prevailing in other parts of the country as there is no Court in the tribal region and political agents and assistant political agents are empowered to act as judges as well as executive officers, which means that justice has not been extended there and the same is thus inhuman and un-Islamic.

29. With regard to the points formulated they placed reliance on the authorities of the superior Courts reported in PLD 1994 SC 738, PLD 1990 Peshawar 51, PLD 1993 SC 341.

30. Mr. Iqbal Ahmad Durrani along with Secretary Establishment FATA Secretariat stated that as per Presidential Order No.13, the employees of FATA whether Provincial or Federal Government both are civil servants. The FATA Secretariat is given Projects which are funded by various organizations and certain persons are employed only for the tenure of those Projects. FATA Secretariat is not a Provincial Department but the employees for all intent and purposes are Government Servants.

31. The learned Attorney-General for Pakistan was put on notice to assist this Court on the point on the last date but today he being busy at Lahore before the learned Bench of the august Supreme Court of Pakistan authorized Syed Muhammad Attique Shah, Addl: Attorney-General to assist the Court in this regard. The learned Addl: Attorney General, while placing reliance on the judgment of apex Court reported in PLD 1992 SC 595, contended that this Court cannot struck down a provision of the basic law i.e. Constitution although it can exercise the power of review regarding other laws enacted by the Parliament. According to him, Article 2-A of the Constitution is not a supra constitutional article as held by the apex Court in so many judgments. He referred to Article 246 of the Constitution and stated that there are two sets of tribal areas i.e. FATA and PATA. Under Article 247(6) of the Constitution the President may, at any time, by Order, direct that the whole or any part of a Tribal Area shall cease to be Tribal Area. The President of Pakistan or the Governor of this Province on his behalf has issued certain Orders through which not only the people of PATA have been given certain rights but even a High Court in the name of Dar-ul-Qaza has also been established there. As the President also includes in the definition of Parliament, therefore, either the President or the Majlis-e-Shoora can extend the jurisdiction of this Court to FATA. The learned Addl: Attorney General answered the points formulated in the instant case as under:- The Federal and Provincial Government employees are governed by the Civil Servants Act for which a special forum has been provided in Article 212 of the Constitution, therefore, this Court can exercise jurisdiction in such like matters, if not barred under Article 212 of the Constitution. Federal employees posted in FATA are also to be governed under the parent law. If a person has been appointed within FATA by FATA functionaries, then the law of master and servant would apply. In illegal detention, it is to be seen whether such a detention is illegal or not. About contractual obligation, he stated that this aspect has also been answered by the apex Court in a judgment.

32. We have considered the arguments advanced by learned counsel for the parties with reference to the jurisdiction of this Court to FATA.

33. The tribal agencies adjacent to the Province of Khyber Pakhtunkhwa came under control of the British Government in the 19th century during the British colonial period. A law called as Frontier Crimes Regulation (FCR) was enacted by the British Punjab Government in 1872 revised in 1887 and 1901. When the areas came under the dominion of Pakistan after partition of India, it continued directly under the governance of Pakistan's federal government and was controlled through the same set of rules which were framed by the British Government in 1901, having a separate feature of judicial system from the rest of the country. These regulations authorize the Deputy Commissioners or the Political Agents to refer all criminal and civil cases to a Jirga. In 1996, the government of Pakistan granted "adult franchise" to the people of Federally Administered. Tribal Areas, under which every adult became entitled to vote for their own representatives in the Majlis-e-Shoora. Despite the introduction of adult franchise, the people of the Tribal Areas do not yet enjoy legal rights. Article 25 of the 1973 Constitution declares that all citizens of Pakistan are equal before law; but this Article is not applicable to FATA, although under Article 1 of the Constitution FATA is part of the territories of Pakistan. Under Article 247 of the Constitution, federal government enjoys absolute authority over the Tribal Areas. Under sub-Article (7), High Courts and Supreme Court of Pakistan are barred from exercising jurisdiction over FATA. The law known as Frontier Crimes Regulation framed by the British Kingdom in 1901 is still the law of the Tribal Areas.

34. Due to close proximity of the tribal areas to this Province, any grievance arising to persons serving in the FATA or proceeded against on criminal or civil side by the FATA forums often comes to this Court and the same are decided on case to case basis keeping in view the facts and circumstances of each case.

35. Article 260(1) of Constitution of Pakistan (1973) uses the expression "service of Pakistan" while Section 2(1)(b) of Civil Servants Act (1973) defines "Civil Servant". "Service of Pakistan" as defined in the Constitution means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parliamentary Secretary, Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to Chief Minister, Adviser to a Chief Minister or member of a House or a Provincial Assembly.

36. Thus, every post or office in connection with the affairs of the Federation is in the service of Pakistan except that office which is expressly excluded in the said definition in Article 260 ibid. After the dissolution of Centrally Administered Tribal Areas Development Corporation (FATA-DC) on 30-6-2002, the scheme of Golden Hand Shake for the employees of defunct FATA-DC was introduced vide notification dated 23-11-2002 wherein it was provided that those employees who do not opt for the Golden Hand Shake Scheme shall be placed in Surplus Pool of Governor's Secretariat, for subsequent adjustment anywhere and against any post as may be deemed appropriate by the Government, on their existing terms and conditions of service. When FATA Secretariat was established in the year 2007, the surplus employees were accommodated in the FATA Secretariat. It was provided in the Notification No.2(8)-TA/2006 dated Ist November 2007 that the FATA Secretariat shall consist of such posts as may be approved by the Federal Government from time to time, appointment to which shall be made by the Government of NWFP with the approval, or under the authority, of the Governor; that all offices and line departments working in connection with the affairs of FATA, and funded by the Federal Government, shall be the subordinate offices and attached directorate of the FATA Secretariat; that day to day field administration of the Federally Administered Tribal Areas, and the co-ordination of all development work and functions of the line departments of the Government, shall be the responsibility of the Political Agents and District Coordination Officers in the Political Agencies and Frontier Regions, respectively, which shall be carried out by them under the supervision and direction of the Governor and the FATA Secretariat.

37. From the above it becomes clear that the posts are created by the Federal Government with the provision of funds on which appointments are made by the Provincial Government. The Political Agents or for that matter the Deputy Commissioners have no authority to make appointment on any post for FATA.

38. Through Presidential Order No.13 of 1972, the employees working in FATA from the appointed day were treated to be the employees of Provincial Government on deputation to the Federal Government and to work under the overall administrative control of the Provincial Government, on the same terms and conditions of service. Under the Civil Secretariat (FATA) Rules for the disposal of business in the Civil Secretariat (FATA) and in its Line Departments, Part-B (Rule-12), the FATA Secretariat shall refer the cases to Provincial Government for appointments against regular posts in the Civil Secretariat (FATA) and in its Line Departments and Subordinate offices. In Civil Petition No.31-P of 2006, decided on 29-6-2006, their lordships of the Supreme Court of Pakistan observed that:-- "Before we part with this judgment we feel compelled to direct that as the employees working in the FATA are subject to all rules and regulation governing the other civil servants in the province of N.-W.F.P. in terms of the President's Order No.13 of 1972 and as the said rules provide for public advertisement of the available posts for making direct appointments to the said posts on merit and in a transparent manner, therefore, the concerned authorities shall make all such appointments in accordance with the said rules regulating the subject."

39. The Hon'ble Islamabad High Court in I.C.A. No.191 of 2012 decided on 5-10-2012 held as under:-- "So far as the embargo and restrain on the exercise of jurisdiction of the High Court or Supreme Court of Pakistan under the provisions of Article 247(7) is concerned the same is not attracted to the case in hand for the reasons that the posts are created in respect of civil service of Pakistan and appointments made thereto are governed by the terms and conditions laid down in Civil Servant Act, 1973. Matter falling within domain of Article 240 of the Constitution and Civil Servant Act, 1973 promulgated pursuant to the provisions of the said Article and rules made thereunder would not go out of the ambit of a constitutional Court on the ground that such a civil servant was appointed against a post created and meant for managing or looking after the affairs relating to FATA. Apart from the above similar matters pertaining to the service of employees of FATA DC were entertained by the Peshawar High Court and the August Supreme Court of Pakistan. We would, therefore, hold that jurisdiction of this Court would not be ousted in view of bar articulated in clause 7 of Article 247 of the Constitution." The above judgment of the Hon'ble Islamabad High Court was challenged by the Secretary Irrigation FATA and others before the August Supreme Court of Pakistan in Civil Petition No.1881 of 2012, where the order was set aside only on the question of jurisdiction as the proper Court for filing such petition was the Peshawar High Court.

40. We are, therefore, of the view that all the employees of FATA Secretariat, its Line Departments and Subordinate offices are Civil Servants, whether on deputatiosn from Provincial Government to the Federal Government or appointed by the Federal Government, either on temporary or permanent or contract basis, the bar contained in Article 247(7) of the Constitution would not apply to those Government Servants mere by their posting in the tribal areas, as a special forum for the redressal of their grievances is provided by the Constitution under Article 212.

41. No precedent or case was brought into the knowledge of this Court that certain persons have been appointed within FATA by the Political Agents. If there are some employees of that category, it would be seen in the context of facts of that case, if brought before this Court, whether the post was created by the Political Agent on which appointment too was made by him or the matter was otherwise.

42. If a person is illegally removed from the settled area to the tribal territory by the political authorities, this Court can entertain the matter, if the procedure as laid down in Section 86-A Cr.P.C. has not been fulfilled. On 12th of August 2011, the then President of Pakistan has made amendments in the FCR called the Frontier Crimes (Amendments) Regulation, 2011, under which a FATA tribunal has also been set up with powers similar to those of the High Courts. In case, the dispute amongst tribal persons arises within the tribal territory and the same is decided under the provisions of FCR upto the level of Tribunal, in that case jurisdiction of this Court would not extend. If the cause of action has arisen/accrued in the settled area but the proceedings have been carried out by the political authority within FATA, then this Court has the jurisdiction to entertain the matter. If the cause of action has arisen in FATA between a person belonging to the settled area and the person is arrested within the territorial limits of this Court and removed to tribal area without fulfillment of the requirements of Section 86-A, Cr.P.C, this Court can exercise constitutional jurisdiction in the matter. Under Section 20(c) of the C.P.C. subject to the limitation stated theretofore, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. It may be remembered that earlier Section 7 of Act 7 of 1888 added Explanation III as under: Explanation III. In suits arising out of contract the cause of action arises within the meaning of this section at any of the following places, namely:-- (1) the place where the contract was made ; (2) the place where the contract was to be performed or performance thereof completed ; (3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.

43. The above Explanation III has now been omitted but nevertheless it may serve a guide. There must be a connecting factor. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors. So long as the parties to a contract do not oust the jurisdiction of all the Courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the Court. In other words, where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as against public policy.

44. Similarly, on arising contractual obligations in FATA between Government functionaries and private persons, the case could be entertained by the ordinary Courts of this Province, if the tenders are opened in the settled area, the contract is signed here and money is also paid from the Government exchequer in the settled area nevertheless the work is to be executed in FATA i.e. to say part of action accrued in the settled area and part of action accrued in the tribal area. As against this, if the whole process is completed within the tribal area, then the ouster clause in the Constitution would come into play.

45. Keeping in view the arguments advanced by learned counsel for the parties as well as the amicus curiae, we may observe that denial of fundamental rights to the people of FATA, which are available to other citizens of Pakistan, has pushed the area of FATA to become the most dangerous spot. There is a dire need for immediate intervention. Though the Constitution of Pakistan guarantees fundamental human rights to all its citizens, the people of tribal agencies are at the mercy of one person, the Political Agent. He is the administrative head, in-charge of the development work, can prosecute anyone and pass judgments as he deems fit.

46. As we understand, the colonial system was characterized by minimum state penetration and aimed only at ensuring security for roads and government posts. The Jirga, which is the traditional Pashtoon Council of Elders, was adapted to work as an intermediary between the state and the predominantly Pashtun tribal population because the Frontier Crimes Regulation only dealt in crimes against the state for which the Political Agent possessed absolute power. Although this administrative system still exists, most of the socio-economic realities, along with the geo-strategic environment, have fundamentally changed, thus severely limiting the effectiveness of this system.

47. It is a matter of record that tribal agencies (FATA) were not originally under the British rule. The FCR was initially implemented in the so-called settled areas of Khyber Pakhtunkhwa province that were under the control of the British Raj. FCR was only implemented in FATA after the birth of Pakistan.

48. Under the FCR, citizens are deprived of the right to appeal, right to legal representation and the right to present reasoned evidence. Besides collective punishment is provided in clause 21 of FCR, which is imposed on anyone in the tribal areas for a crime committed by him or her relative, spouse, or even any other person from the same tribe and area. The political agent or his deputy, the assistant political agent, enjoys unbridled powers both executive and judicial. There is no regulatory mechanism to check misuse of power by the political agent which often results in serious human rights violations. The suspects are tried by a tribal jirga or Council which submits its recommendations regarding conviction or acquittal to the political agent. The political agent makes a decision regarding conviction or acquittal and is not bound by the jirga's recommendations. The orders of the political agent cannot be challenged before the higher courts. In effect, there is virtually no separation of the judiciary from the executive in the FATA.

49. Late Supreme Court Chief Justice Alvin Robert Cornelius said that the 1901 Frontier Crimes Regulation is "obnoxious to all recognized modern principles governing the dispensation of justice" (Sumunder v. State, PLD 1954 SC 228). In 1979, the Balochistan High Court (Shariat Bench) held that the FCR is "discriminatory and un-Islamic". On 29 July 2002, the Lahore High Court ruled that the Frontier Crimes Regulation had ceased to exist following the Balochistan High Court judgment and hence, detention under the FCR is "illegal". In Article 1 of the Constitution, FATA is named as part of Pakistan. Article 247 describes the manner and methods by which the tribal areas should be administered. Under Article 247 (3) of the Constitution of 1973, "no Act of Parliament is applicable to FATA or any part thereof unless the President of Pakistan so directs".

50. Article 247(7) of the Constitution provides:-- "Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless Majlis-e-Shoora (Parliament) by law otherwise provides:" Now the question would be whether a court can assume jurisdiction in the matters relating to tribal areas when there is a provision in the Constitution itself which bars such jurisdiction of this Court to FATA. Under Article 267-A it is provided that, if any difficulty arises in giving effect to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, or for bringing the provisions of the Act into effective operation, the matter shall be laid before both Houses in a joint sitting which may by a resolution direct that the provisions of the Act shall, during such period as may be specified in the resolution, have effect, subject to such adaptation whether by way of modification, addition or omission, as may be deemed necessary or expedient.

51. In the case of Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 Supreme Court 595), the question before their lordships of the apex Court was "whether Article 2A, which was inserted by President's Order No.14 of 1985 in the Constitution of Pakistan, 1973 and made a substantive part thereof has resulted in denuding the President of the power of commuting the sentence of death passed in respect of persons found guilty of murder despite the powers conferred on him by Article 24 of 1973 Constitution to do so and whether the provisions of the said Article 45 to this extent have become ineffective? Their lordships after considering the question thoroughly and exhaustively on the touchstone of Objective Resolution and Islamic Injunctions held that in case the Constitution-makers of 1973 in enacting the provisions of Article 45 of the Constitution of 1973 in their present form have indeed transgressed the "limits prescribed by Allah Almighty" can the Courts invalidate the aforesaid provisions of Article 45 to the extent of the transgression? If any question is raised in connection with the validity of any existing provision of the Constitution on the ground that it transgresses the limits prescribed by Allah Almighty (within which His people were competent to make laws) such a question can only be resolved by the Majlis-e-Shoora (Parliament), which can, if the plea is well founded, take the necessary remedial action by making suitable amendments in the impugned provision in order to bring it within the limits prescribed by Allah Almighty.

52. In the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 Supreme Court 341) it was held that:-- "In cases of violation of fundamental rights the superior Courts are empowered to issue direction to the Federal Government or the Provincial Government to bring the law in conformity with fundamental rights and/or enforce law and issue notification in that regard. The State as defined in Article-87 is bound to discharge its Constitutional obligations. In case of failure even the legislature and executive can be directed to initiate legislative measures to bring law in conformity with the fundamental rights." Similar view was expressed by the apex Court in the case of Al-Jehad Trust v. Federation of Pakistan (1999 SCMR 1379) that no direction can be issued to the Legislature to legislate a particular law, however, direction can be issued to the Federation to initiate administrative and legislative measures for complying with the mandate of the Constitution.

53. As the question of inconsistency between the two provisions of Constitution can only be resolved by the Majlis-e-Shoora (Parliament), we therefore feel it necessary to make an advice to the Parliament through Federation for making suitable amendments in Article-247(7) of the Constitution so as the people of FATA could invoke the jurisdiction of this Court or of the Supreme Court in case of infringement of their fundamental rights, which are though available to them under the Constitution being Citizens of Pakistan but cannot be availed because of the bar contained in Article-247(7) of the Constitution.

54. Before parting with this case we would like to record our deep appreciation for extremely valuable assistance provided by the learned amicus curiae and learned counsel for the parties.

55. The office is directed to send copies of this judgment to the Federation through Secretary Ministry of Law, Justice and Parliamentary Affairs as well as Speakers of Senate and National Assembly of Pakistan, while all the writ petitions shall be fixed before Division Benches of this Court for decision in accordance with the guidelines provided by the apex Court in the cases reported in PLD 2014 SC 174 and 2014 SCMR 17 as well as the instant judgment. (Sd.) Mian Fasih-ul-Mulk, C.J. (Sd.) Mazhar Alam Khan, J. (Sd.) Qaiser Rashid Khan, J. (Sd.) Malik Manzoor Hussain, J. YAHYA AFRIDI, J.

I fully agree and endorse the judgment authored by his lordship honourable the Chief Justice except the specific advice to the Parliament for the following reasons:-- YAHYA AFRIDI, J.

It was a privilege going through the opinion rendered by his lordship the Chief Justice, which has been endorsed with approval by my three brother Judges on this Full Bench. I am in complete accord with the findings of the worthy Chief Justice rendered in the Judgment on all eight issues raised by the Full Bench in these connected cases.

2. I also share the views recorded by the Chief Justice that all the citizens, hailing from Federally Administered Tribal Areas ("people of FATA") being Pakistanis, have and are entitled to all the fundamental rights, as enshrined in the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") and that in the present legal disposition, despite the clear mandate and command of the Constitution, the same cannot be executable or enforceable by them. However, with sincere respect and utmost humility, I differ with my worthy brothers, as far as the specific advice rendered to the Parliament through Federation, which is to the effect, that:-- "to make specific amendments in Article 247(7) of the Constitution so as the people of FATA could invoke the jurisdiction of this Court or of the Supreme Court in case of infringement of their fundamental rights, which are though available to them under the Constitution being citizens of Pakistan but could not be availed because of the bar contained in Article 247(7) of the Constitution".

3. I take my specific stance on two legal premises:-- Firstly, that the people of FATA have a peculiar historic, social and customary characteristic, which has been duly recognized in all administrative, constitutional and other legal instruments relating to the said area and thus warranting caution and restraint of this Court. Secondly, the principles of trichotomy of power, enshrined in the Constitution, mandates that each organ of the State be allowed to function independently, without interference by the other two organs, so as to avoid and undermine its peculiar ordained capacity and constitutional functions.

4. Now, let us start with the peculiar historic, social and customary features of the people of FATA. Pre-Partition-British Raaj. During the pre-partition days, there were four Tribal Agencies, namely; Khyber, Kurram, South Waziristan and North Waziristan ("Original Four Agencies"). The present Mohmand, Bajaur and Orakzai Agencies were Frontier Regions being administered by the Deputy Commissioner Peshawar, Political Agent Malakand and Deputy Commissioner Kohat, respectively. In fact, the Original Four Agencies and the erstwhile Frontier Regions were never a part of the British Empire. However, the Raaj maintained its control over the Tribal Agencies by entering into separate treaties with different tribes in the Tribal Area; setting the terms of their relations. The agent of the Raaj in the Agency was the Political Agent. It would be interesting to note that under some of the said treaties, the jurisdiction of the Political Agent was only confined to the forts, government buildings, the roads and certain defined areas on either side of the said roads. 'Sharia' and the customary law-(`Rewaj ), were then prevalent legal sources of law, which governed the disputes amongst the people of FATA or the tribes without the involvement of the Raaj'. Keeping in view the independent nature of the people of FATA and their strong affiliation with `Sharia' and the Rewaj, the British Raaj respected the same and never tried to directly rule or impose upon them the ordinary law, which prevailed in British India. However, the Raaj, keeping in view the Rewaj introduced successive regulations; commencing in the year 1872 and finally culminating in Frontier Crimes Regulation, 1901 ("FCR"). FCR, inter alia, laid down the procedure for resolving civil and criminal disputes through Council of Elders, nominated by the Political Agent, while the consent of the contesting parties to the said nomination had to be taken into consideration. As far as enforcing the writ of the Raaj, the principle of "Territorial and collective responsibility" the Maliks', Khasadars' and the `Scouts', were the instruments through which law and order was maintained. This individualistic character of the people of FATA was maintained throughout the British Raaj and was duly recognized in the Government of India Act, 1935, wherein "Tribal Areas" meant the areas along the frontiers of India or in Baluchistan which were not part of British India or of Burma or of any Indian State or of any foreign State." Independence of Pakistan It is very crucial to note that at the time of independence of Pakistan, the people of FATA, unanimously and unilaterally opted to become the part of Pakistan and rendered their complete support to Quaid-e-Azam Muhammad Ali Jinnah. This undoubtedly unquestionable support of the people of FATA has been recognized by Mr. Jinnah in his speech on 17th April, 1948 to the Tribal Jirga at Government House, Peshawar, wherein he very expressly noted that:-- " I am glad to note that you have pledged your loyalty to Pakistan, and that you will help Pakistan with all your resources and ability. I appreciate this solemn declaration made by you today. I am fully aware of the part that you have already played in the establishment of Pakistan, and I am thankful to you for all the sympathy and support you gave me in my struggle and fight for the establishment of Pakistan. Pakistan has no desire to unduly interfere with your internal freedom. On the contrary; Pakistan wants to help you and make you, as far as it lies in our Power, self-reliant and self-sufficient and help in your educational, social and economic uplift, and not be left as you are dependent on annual doles, as has been the practice hitherto which mean that at the end of the year you were no better off than beggars asking for allowances, if possible a little more. We want to put you on your legs as self-respecting citizens who have the opportunities of fully developing and producing what is best in you and your land .. You have also expressed your desire that the benefit, such as your allowances and khassadari, that you have had in the past and are receiving, should continue. Neither my Government nor I have any desire to modify the existing arrangements except, in consultation with you, so long as you remain loyal and faithful to Pakistan . In the end, I warmly thank you for the wholehearted and unstinted declaration of your pledge and your assurances to support Pakistan, so that it may reach the pinnacle of glories of Islam and become a great and mighty nation among other nations of the world. Pakistan Zindabad" Post Independence Era. This inherent independent characteristic of the people of FATA has been duly recognized and recorded in the successive important legal and constitutional instruments of the Post Independence Era; Indian Independence Act, 1947; the Extra Provincial Jurisdiction Order, 1949; Establishment of West Pakistan Act, 1955 and finally the Constitutions of 1956 and 1962. In fact, FCR was applied to the settled areas of Peshawar, Hazara, Derajaat, Bannu, Kohat and areas of Balochistan. Finally, with the dissolution of One Unit and the imposition of Martial-Law by General Yahya Khan, the application of FCR was withdrawn from the settled areas and was restricted to FATA and the tribal areas in Balochistan. Constitution of Islamic Republic of Pakistan, 1973. In the Interim Constitutional Order, 1972, which culminated into the Constitution of Islamic Republic of Pakistan 1973, the "Tribal Areas" were expressly defined and its geographical limits set (Article 246) and clearly included as part of territory of Pakistan (Article 1). The independent characteristic of the people of FATA was duly recognized and maintained by the Constituent Assembly by incorporating clear provisions in Article-247, wherein not only the application of laws framed by the Parliament but also the jurisdiction of all the High Courts and the Supreme Court of Pakistan was expressly excluded from its application "to matters relating to the Tribal Areas". The legislature, in its wisdom, vested the authority in the President of Pakistan ("President") to extend the laws passed by the Parliament to FATA. More significant to the issue in hand is the authority of the President to order cessation of whole or any part of the Tribal Area, as Tribal Area. However, even this authority of the President to pass such an order has been made conditional to the 'views' of the people of FATA "Tribal Jirga". Sub-Article-6 of Article-247 of the Constitution mandates the same as wider:-- "The President may, at any time, by Order, direct that the whole or any part of a Tribal Area shall cease to be Tribal Area, and such Order may contain such incidental and consequential provisions as appear to the President to be necessary and proper: Provided that before making any Order under this clause, the President shall ascertain, in such manner as he considers appropriate, the views of the people of the Tribal Area concerned, as represented in tribal jirga." Before proceeding further, the speeches of the parliamentarians, while debating the provisions relating to the Tribal Areas, at the time of framing the Constitution, clearly recognized the independence of the people of FATA and the dominance of the Rewaj. In this regard, the views rendered by Malik Niamatullah Khan Shinwari, a worthy Member from Khyber Agency, were very prominent and striking, the extract of which is as follows:-- Reforms With time, the deteriorating law and order situation, lack of economic activities and scarce opportunities and more importantly, the frail supporting legal and administrative structure gave rise to stark awareness amongst the people of FATA that there was a dire need for social, administrative and legal reforms. It was the care-taker Government of Malik Meraj Khalid in 1996 that for the first time, significant amendments were introduced in the FCR. A revisional forum ("FATA Tribunal") was created to review the decisions of the Political Agent (Original forum) and the Commissioner Appeals (Appellate forum) by incorporating Section 55A in FCR. More importantly, 'adult franchise' was introduced to elect the members of the National Assembly, which were earlier elected by the Maliks', who were themselves appointed by the Political Administration in FATA. Thus, by introducing 'adult franchise', the representatives of the people of FATA in the Parliament became broad based and more democratic. Finally, a Commission headed by Mr. Justice (R) Mian Ajmal, ("Commission") was constituted. The worthy Judge had remained not only an esteemed Judge of the Supreme Court but the Chief Justice of Peshawar High Court. The Commission recommended very crucial amendments in the FCR on all important issues, inter alia, on habeas corpus; bail to an accused; the composition of Members of the FATA Tribunal; and finally vesting review jurisdiction to the FATA Tribunal. The recommendations of the Commission on the matter of composition of the FATA Tribunal and vesting in it the Review Jurisdiction were as follows:-- "55 A (1) A revision shall lie to the FATA Tribunal within 90 days against any decision given, judgment passed or order made by the Appellate Authority under this Regulation. (2) FATA Tribunal shall consist of a Chairman, being a person who has been a Judge of the High Court and two other members, out of whom one shall be a person who has been a civil servant of not less than BPS-21 having experience of Tribal Administration and the other shall be a person who is qualified to be appointed as Judge of the High Court, well conversant with Sharia and usages (Rewaj) of the Tribal Areas or a well reputed Alim qualified to be appointed as Judge of the Federal Shariat Court. (3) The Chairman and the members shall be appointed by the Governor on such terms and conditions as he may determine for a period of three years. (4) The Tribunal shall have the same powers which the Appellate Authority has been invested under sections 50 and 52 of this Regulation and may exercise any power conferred on the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan. (5) The decision of the Tribunal shall be by majority: Provided that nothing in this Chapter shall be deemed to authorize the Tribunal to vary or set aside any decision, sentence passed, decree or order given, passed or made in any criminal or civil proceedings under this Regulation on question of fact, unless the Tribunal is of the opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice or that the decision, decree or order is contrary to good conscience or public policy. (6) Every Judgment passed or order made by the Tribunal in exercise of its revisional jurisdiction shall be enforced by the Political Agent or District Coordination Officer, as the case may be, who shall do all acts and things necessary to give effect thereto. (emphasis provided) 55AA Review :-- The FATA Tribunal may review any decision given, judgment passed or order made by it within 30 days to correct a clerical mistake or any patent legal error. Amendments in FCR Some of the reforms recommended by the Commission were positively considered by the Government. Accordingly, appropriate amendments were made in the FCR through Frontier Crimes A (Amendment) Regulation, 2011. However, the most critical recommendation of the Commission regarding the composition of FATA Tribunal was not positively considered. Instead, the composition of the FATA Tribunal was amended, and at present stands, as follows:-- "55-A.

(1) A revision shall lie to the FATA Tribunal within ninety days against any decision given, judgment, decree or sentence passed or order made by the Appellate Authority under this Regulation. (2) FATA Tribunal shall consist of a Chairman, being a person who has been a civil servant of not less than BPS-21 having experience of Tribal Administration and two other members, out of whom one shall be a person who is qualified to be appointed as Judge of the High Court, well conversant with Rewaj, and the other who has been a civil servant of not less than BPS-20 having experience of Tribal Administration. (3) The Chairman and the members shall be appointed by the Governor on such terms and conditions as he may determine for a period of three years or during the pleasure of the Governor. (4) The Tribunal shall have the same powers with which the Appellate Authority has been invested under sections 50 and 52 of this Regulation and may also call for the record of any proceedings or case from the subordinate forum and revise any decision, decree, sentence or order given, passed or made under this Regulation. The Tribunal may whenever it thinks proper, direct.-- (a) that a person within limits of its jurisdiction be brought up before the tribunal to be dealt a according to law; (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty; (c) that a person detained in any jail situated within such limits be brought before the tribunal to be there examined as a witness in any matter pending or to be inquired into such tribunal; and (d) that a prisoner within such limits be removed from a custody to another for purpose of trial; (5) The Tribunal may from time to time, frame rules to regulate the procedure in such cases. (Emphasis provided) Reviewing the present composition of the FATA Tribunal in the FCR, clearly suggests that the same does not fulfill the minimum Constitutional requirement of a judicial forum, as laid down by the apex Court in Mehram Ali's case (PLD 1998 SC 1445). The observations of their lordships were to the effect that:- "On the basis of the above case-law, we have held hereinabove that the constitutional framework relating to judiciary does not admit/permit the establishment of a parallel system of the Courts or Tribunals, which are not under the judicial review and administrative control and supervision of the High Court. In the present case an appeal is provided to an appellate Tribunal and not even to the High Court as such. Provision of S.24 of the Anti-Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of judiciary and Articles 175 and 203 of the Constitution." The present composition of the FATA Tribunal in FCR, reminds one of the Immigration and Asylum cases in England. In the landmark decision of the European Court of Human Rights in the landmark case of CHAHAL v. The United Kingdom (1996) 23EHRR 413, the decisions of the Home Secretary and the scope of judicial review of the said decisions, in cases, where the government took the plea of national security was exhaustively discussed. It was held that the rights of an asylum seeker and the then prevailing legal dispensation in England was in violation of the rights enshrined in Articles 5 and 13 of the European Convention of Human Rights. The Court held that:-- "

131. The Court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved (see, mutatis mutandis, the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A No. 182, p. 17, para. 34, and the Murray v. the United Kingdom judgment of 28 October 1994, Series A No. 300-A, p. 27, para. 58). The Court attaches significance to the fact that, as the intervenors pointed out in connection with Article 13 (art 13) (see paragraph 144 below), in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.

132. It follows that the Court considers that neither the proceedings for habeas corpus and for judicial review of the decision to detain Mr. Chahal before the domestic courts, nor the advisory panel procedure, satisfied the requirements of Article 5 para. 4 (art 5-4). This shortcoming is all the more significant given that Mr. Chahal has undoubtedly been deprived of his liberty for a length of time which is bound to give rise to serious concern (see paragraph 123 above).

133. In conclusion, there has been a violation of Article 5 para. 4 of the Convention (art 5-4). Because the Secretary of State invoked national security considerations as grounds for his decisions to deport Mr.Chahal and to detain him pending deportation, the English courts' powers of review were limited. They could not themselves consider the evidence on which the Secretary of State had based his decision that the applicant constituted a danger to national security or undertake any evaluation of the Article 3 (art. 3) risks. Instead, they had to confine themselves to examining whether the evidence showed that the Secretary of State had carried out the balancing exercise required by the domestic law (see paragraph 41 above). .....

144. The intervenors (see paragraph 6 above) were all of the view that judicial review did not constitute an effective remedy in cases involving national security. Article 13 (art 13) required at least that some independent body should be appraised of all the facts and evidence and entitled to reach a decision which would be binding on the Secretary of State. In this connection, Amnesty International, Liberty, the AIRE Centre and JCWI (see paragraph 6 above) drew the Court's attention to the procedure applied in such cases in Canada. Under the Canadian Immigration Act 1976 (as amended by the Immigration Act 1988), a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State's case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant .

153. In the present case, neither the advisory panel nor the courts could review the decision of the Home Secretary to deport Mr. Chahal to India with reference solely to the question of risk, leaving aside national security considerations. On the contrary, the courts' approach was one of satisfying themselves that the Home Secretary had balanced the risk to Mr.Chahal against the danger to national security (see paragraph 41 above). It follows from the above considerations that these cannot be considered effective remedies in respect of Mr.Chahal's Article 3 (art 3) complaint for the purposes of Article 13 of the Convention (art. 13).

154. Moreover, the Court notes that in the proceedings before the advisory panel the applicant was not entitled, inter alia, to legal representation, that he was only given an outline of the grounds for the notice of intention to deport, that the panel had no power of decision and that its advice to the Home Secretary was not binding and was not disclosed (see paragraphs 30, 32 and 60 above). In these circumstances, the advisory panel could not be considered to offer sufficient procedural safeguards for the purposes of Article 13 (art. 13) .

155. Having regard to the extent of the deficiencies of both the judicial review proceedings and the advisory panel, the Court cannot consider that the remedies taken together satisfy the requirements of Article 13 in conjunction with Article 3 (art. 13+3). Accordingly, there has been a violation of Article 13 (art. 13). The Chahal's decision prompted Her Majesty's Government to develop a process of adjudication enshrined in the Special Immigration Appeals Commission Act, 1997 ("Act"). The Commission, under the Act, consists of three members of whom one must be a serving or retired High Court or Appeal Court Judge. Appointment to the Commission is exclusively the prerogative of the Lord Chancellor. Presently, Mr. Justice Irwin is the Chairman of the Commission.

5. Now, we move on the second crucial issue relating to the principle of Trichotomy of Power. Pakistan is blessed with a written Constitution, wherein each organ of the State; Executive, Legislative and the Judiciary has been created and provided their specific sphere of functions, duties and obligations. The principle of Trichotomy of Power, as engrained in the Constitution is to ensure that there be a balance between the three organs of the State. In fact, it is the judiciary, which is to ensure that the two other organs do not exceed their respective defined roles assigned under the Constitution, in order to maintain the constitutional harmony. The apex Court in Syed Masroor Ahsan's case (PLD 1998 SC 823) has eloquently articulated the principle and provided the following guidelines, ibid:-- "It will not be out of context at this stage to observe that our country has a Federal System of Government, which is based on trichotomy of power; each organ of the State is required to function/operate within the bounds specified in the Constitution. Though one can say that Judiciary is the weakest limb as it does not have the resources or powers which the Legislature or the Executive enjoy, but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provision of the Constitution or any other law and because of the above nature of work entrusted to the Judiciary, the framers of the Constitution envisaged an independent Judiciary. However, I may add that the Judiciary is also Constitutionally obliged to act within the limits of its jurisdiction as delineated by the Constitution inter alia in Article 175 thereof Clause (2) of the above Article provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by under any law. In this view of the matter, the relevant Constitutional provisions are to be construed in a manner that neither the Judiciary nor the Legislature transgresses its own limit and equilibrium is to be maintained inter se between the three organs of the State. However, at the same time, it should not be overlooked that our Constitution has enshrined and emphasized independence of Judiciary and, therefore, the relevant provisions are to be construed in a manner, which would ensure the independence of Judiciary." The "ratio decidendi" of the aforementioned judgment of the apex Court has consistently been followed by the superior Court of our jurisdiction. Some of the important decisions in this regard are; Fauji Foundation's case (PLD 1983 SC 457), Mrs. Benazir Bhutto's case (PLD 1989 SC 66), Dr. Mobashir Hassan's case (PLD 2010 SC 265), Tariq Aziz-ud-Din's case (2011 PLC (C.S.) 1130), Watan Party's case (PLD 2011 SC 997), Dossani Travels'cases (2011 SCMR 1749 and PLD 2014 SC 1) and Wukala Mahaz's case (2014 SCMR 111). Keeping in view that our Constitution has clearly reflected and maintained the balance between the three organs of the State by upholding the principle of trichotomy of power. It would be safe to state, that to maintain the balance of trichotomy of power, is in fact, the "basic structure" of our Constitution. Now, when we canvass the provisions of the Constitution, the President and the Parliament have various legal and constitutional options available to ensure that the fundamental rights of the people of FATA are made meaningful by being enforceable by a competent legal judicial forum. The President and the Parliament, which now has members from FATA, elected on 'adult franchise' basis, would surely keep the best interests of the people of FATA as paramount consideration in deciding the option to be adopted, as has been repeatedly resounded in the various legal and constitutional instruments, since the turn of the 19th century. Some of legal and constitutional options, which are available to the President and the Parliament, are noted as follows:-- (I) Amend Sub-Article-7 of Article-247. Appropriate amendments be introduced in sub-Article (7) of Article-247 of the Constitution, as has been recommended by my worthy brothers. (II) Cessation of whole or part of Tribal Area. The President may, while exercising his authority provided under Sub-Article (6_ of Article-247 of the Constitution, order to cease whole or part of FATA to be Tribal Area, with such incidental and consequential provisions as appear to the President to be necessary and proper. Surely, this option would require the approval of the Tribal Jirga. It may be noted that in case this option is successfully carried out, the whole or part of Tribal Area would either have to merge in another Province or lead to the creation of a separate Province. (III) Extension of Jurisdiction to a High Court. The Parliament may extend the jurisdiction of any High Court to matters relating to FATA under Sub-Article-5 of Article 192 of the Constitution. (IV) Amendment in Sub-Section (2) of Section 55A of FCR. The present composition of FATA Tribunal comprises of "Three Wise Men", headed by a civil servant, with two members; one being conversant with Rewaj and the other having the qualification of being a Judge of the High Court. In contrast, the commission had recommended, inter alia, that the Tribunal be headed by a Judge of the High Court. The recommendation of Commission can be adopted and appropriate amendment be made in section 55A of FCR.

7. In conclusion, with utmost respect to my esteemed brothers and with all the humility at my command, I am of the view that as far as the enunciation of this court that the People of FATA lack the legal and judicial forum to ensure their fundamental rights to be enforced and executed in meaningful manner, as is the command and spirit of the Constitution, is where the role of judiciary ought to end and what steps are to be taken by the executive and the parliament to ensure that matter is remedied are matters of 'policy' and thus should best be left to the wisdom and decision of the other two organs. Any 'advice' with specific steps entailed therein renders the same to loose its significance and transforms into a 'direction', which if made to the Parliament through the Executive would be contrary to the spirit of our Constitution. MWA/283/P Order accordingly.