P L D 1958 (W (PLP)

KAIKAUS, J.‑By this writ petition Abdul Sami Khan, a salesman in the Sutlej Cotton Mills, Okara, challenges a warrant issued by the Political Agent, Khyber.

2. Hamesh Gul, one of the respondents in this petition, is the President of the Khyber Cloth Syndicate and holds a permit for monthly allotment of twelve bales of cloth. This permit has been issued by the Political Agent, Khyber. On the 6th of November 1954, Hamesh Gul deposited Rs. 3,000 with the Sutlej Cotton Mills as an advance for the quota of October 1954. This amount was actually received by the petitioner on behalf of the Sutlej Cotton Mill. On the 11th of November 1954. the Sutlej Cotton Mills despatched the October quota by goods train to Hamesh Gul, sending the Railway Receipt to a Bank, to be redeemed on payment of Rs 18,140‑3‑

6. On the 26th of November 1954, the November quota also was similarly despatched against a payment of Rs. 17,669‑12‑

0. Hamesh Gul pointed out that he had already paid Rs. 3,000 and asked for an adjustment for that sum which was allowed by the mill. Hamesh Gul then made another claim that as the rates of cloth had been reduced by the order of the Textile Commissioner by 12%, that reduction should also be allowed to him. This the mill refused on the ground that the goods had been despatched before the order of the Textile Commissioner had been passed. Hamesh Gul in spite of being repeatedly asked to take delivery on payment of the full sum due failed to do so. As a result, the cloth was brought to Lyallpur and sold in open auction resulting in a loss of Rs. 6,784‑15‑0 to the mill.

3. Some time later a warrant of arrest of the petitioner issued by the Political Agent, Khyber Agency, Peshawar, was received in Montgomery. The petitioner gave security for his appearance before the Political Agent but then moved this Court for a writ of certiorari or other appropriate writ on the ground that he was not guilty of any offence for he had simply received an amount on behalf of the Sutlej Cotton Mills and the warrant of arrest was intended only to harass him and put pressure on him so that the sum of Rs. 3,000 may be returned.

4. The file of the case in which the warrant was issued has been sent for and it discloses that Hamesh Gul filed before the Political Agent, Khyber Agency, a suit for recovery of Rs. 4,

000. The document which he presented to the Political Agent is obvi ously a plaint in which he himself is shown as plaintiff and the present petitioner as defendant and the title is: "suit for recovery of Rs. 3,000 paid as advance and Rs. 1,000 as damages for failure to sell the cloth at the appointed time and according to the market rate. In the Order of the Political; Agent this document is expressly referred to as a plaint, Hamesh Gul is referred to as a plaintiff, and the petitioner is referred to as defendant. The order sheet bears the heading "under section 8 F. C. R."' Section 8 of the F. C. R relates to civil disputes. On this plaint a summons was issued for some hearings it was not served but on the 13th of February 1956 it was returned with the endorsement that it had been served. The petitioner did not appear but instead sent a telegram saying he was sick and requesting for an adjournment. The Political Agent was of the opinion that the absence of the petitioner was intentional and he ordered the issue of a warrant. It is this warrant which was received in Montgomery and in execu tion of which the petitioner was arrested.

5. It is apparent that the proceedings before the Political Agent are entirely without jurisdiction. In the first place section 8 of the F. C. R. only provides for a reference by the Deputy Com missioner to a Council of Elders and not for the trial of a civil suit. Then, this section itself has been held to be void in view of its conflict with Article 5 of the Constitution of Pakistan, in Khan Abdul Akbar Khan v. Deputy Commissioner of Peshawar and others (P L D 1957 Pesh. 101). Again, even if a civil suit had been properly filed, there would be no jurisdiction at all to issue a warrant for appearance. If the defendant did not appear, the Court could only have proceeded ex‑parte.

6. Learned counsel who appears for the Political Agent is unable to meet any of the grounds of attack on the validity of this warrant. He contends, however, that this Court has no jurisdiction in the matter because of Article 178 of the Constitution which excludes from the jurisdiction of the High Court "Special Areas". We reproduce the Article below:‑ "

178. Notwithstanding anything in the Constitution, neither the Supreme Court nor a High Court shall, unless Parliament by law otherwise provides, exercise any jurisdiction under the Constitution in relation to the Special Areas." It is admitted of course that the Khyber Agency is a Special Area but this article can be of no help to the respondent. It is not necessary at all for the High Court to have jurisdiction over the Courts in a Special Area in order that it may prevent a person residing in an area within its jurisdiction from being illegally arrested in execution of a warrant purporting to have been issued by some authority in that Special Area. Nor does this Article prevent this Court from declaring that an order passed by some authority purporting to be a Court exercising jurisdiction in a Special Area is void. A person living within the jurisdiction of this High Court can demand that he be arrested only in accordance with law. If he is being arrested in execution of warrant, it should be shown that there is law applicable to the place where the warrant is being executed which justifies the execution of that warrant. The only provisions to which learned counsel for the Political Agent can refer as justification for the arrest of the petitioner are sections 83, 84 and 85 of the Code of Criminal Procedure, but these sections apply only to a case where a person who is a Magistrate within the meaning of the Code of Criminal Procedure issues a warrant against an accused after taking cognizance of an offence under section 190, Cr. P. C. That obviously not being the case here, the warrant could not have been executed. This warrant has no existence in the eye of law.

7. It is at the same time not at all necessary that the High Court should have jurisdiction in a Special Area in order that it may be able to pronounce an order of a Magistrate or Court acting within that area to be void. It is one thing to set aside an order and it is an entirely different thing to find that it has no existence in the eye of law. It is only an appellate or revisional Court that can set aside an order (or it may be set aside in a separate suit), but any Court can find an order of any other authority, whether acting as a Court or otherwise, to be void. Even a Court of inferior jurisdiction is entitled to hold an order passed by a Court of superior jurisdiction to be void. Our interpretation of Article 178 does not at all need support of any authority, but if an authority were required, I may refer to Dosso v. The State (P L D 1957 Quetta 9) where it was held that it was open to the High Court in spite of Article 178 of the Constitution to pronounce proceedings which were being taken under the F. C. R. in the Special Areas to be void.

8. This writ petition is accepted and the warrant of arrest is held to be void. The security given by the petitioner for appearance on account of warrant shall create no liability. The petitioner shall have his costs from Hamesh Gul respondent. MASUD AHMAD, J.‑I agree. A. H. Petition accepted.