1999 PLP 2661 (MLD)

QAZI MUHAMMAD FAROOQ, J.

This writ petition calls in question the arrest and detention of the petitioners Abdul Manan and Shatif Jan by the Political Authorities Khyber Agency. It has arisen in the circumstances that an identical writ petition, bearing No.1171 of 1998, filed ealier was dismissed on 3-9-1998 in the following terms:-- "Learned counsel for the petitioners wants to withdraw & writ petition. Dismissed as withdrawn. " After the dismissal of the writ petition the Political Tehsildar Bara through a letter addressed to the ASSISTANT Political Agent Bara on 4-9-1998 proposed release of the petitioner on the ground that a decision in respect thereof bad been taken during the course of hearing of the petition. The proposal, however, did not prevail on which tile present writ petition was filed with the allegation that the writ petition filed earlier was withdrawn on the assurance of the Political Tehsildar Bara that the petitioners will be released on bail if they move an application for the purpose. It was further alleged that the petitioners were residing in the settled area for the last 40 or 50 years and were also arrested from the settled area, therefore, their detention by the Political Authorities Khyber Agency was illegal, without lawful authority and without jurisdiction.

2. The Political Authorities concerned took the stance in their comments that during the course of hearing of the earlier writ petition the Court had not ordered release of the petitioners but had advised to consider their bail applications if they were not criminals. The petitioners had accordingly moved a bail application which was dismissed on merits. They further submitted that the petitioners had dual habitation and were arrested by the Political Tehsildar in Bara on 1-8-1998 by invoking collective responsibilities against the Malik Din Khel Afridi tribe for their failure to surrender the notorious criminals, namely, Samandar, Asmatullah Alias 'Shaitan', Said Wali etc. The petitioners were close relatives of Samandar and Said Wali.

3. It was contended by the learned counsel for the petitioners with vehemence that notwithstanding the bar contained in Article 247(7) of the Constitution this Court had the jurisdiction to issue Writ of Habeas Corpus and the Political Authorities had no jurisdiction to detain the petitioners as the petitioners were not only residing in the settled area for the last 40 or 50 years and had nothing to do with the Tribal Territory but were also arrested from the settled area. Reliance was placed on Malik Noor Badshah v. Deputy Commissioner Kohat and another (PLD 1980 Peshawar 265). It was further contended that the Political Authorities were obliged to fulfil their commitment to release the petitioners on bail. .

4. The learned Additional Advocate-General, on the other hand, maintained that the petitioners were Malak Din Khel Afridis and had houses in the settled area as well as the Tribal Territory and were arrested in the Tribal Territory, therefore, the writ petition was not maintainable in view of the express bar contained in Article 247(7) of the Constitution. Reliance was placed on Qaum Bangash and others v. Qaum Turi and others (1991 SCMR 2400). He further submitted that the Political Tehsildar had not made any commitment with regard to the release of the petitioners on bail and the only thing stated by him in the Court was that let the petitioners make an application for bail and the same will be considered on merits.

5. The commitment attributed to the Political Authorities appears to be a figment of the imagination of the petitioners because had such a commitment been really made it would have certainly found mention in the order, dated 3-9-1998 whereby the earlier W.P, No.1171 of 1998 was dismissed as withdrawn. Be that as it may, the controversy has offset the effect of the dismissal of the first writ petition as withdrawn and equipped the petitioners with a new ground of attack to re-open a closed chapter.

6. This brings us to the contentious question as to whether the petitioners were arrested by the Political Authorities in the settled area, namely, the area within the territorial jurisdiction of this Court or the Tribal Territory which is not amenable to Writ Jurisdiction of this Court. The question having become a simple question of jurisdictional fact in view of the rival contentions is to be determined in the light of the material available on record. The affidavit filed by the petitioners has been neutralized by the counter-affidavit pressed into service by the respondents. The remaining material on record tilts the balance in favour of the respondents. The assertion made in the petition that the petitioners are residing in the settled area for the last 40 or 50 years and the documents indicating the father of petitioner Abdul Marian to be member of Malik Din Khel tribe and a 'Lungi' holder of Khyber Agency go a long way to suggest that the petitioners have not severed their link with the tribal territory. We are thus inclined to agree with the standpoint of the respondents that it is a case of dual habitation. Proceeding on this conclusion we find no difficulty in holding that the petitioners were arrested in the tribal territory because in case of dual A habitation if there is no proof of arrest of the detenue from the settled area then there would !)c a strong presumption that he was arrested in the tribal territory during his visit to the ancestral house. The action of the Political Authorities is thus not amenable to the Writ Jurisdiction of this Court in view of the explicit embargo contained in Article 247(7) of the Constitution and the observations made in 1991 SCMR 2400. Needless to mention that the position would have been otherwise had there been some material on record pointing to the arrest of 8 the petitioners from the settled area because in that eventuality the arrest would have offended against the mandatory provisions of section 86-A of the Code of Criminal Procedure.

7. The result of the above discussion is that this writ petition has no merits and is dismissed with no order as to costs. Q.M.H./273/P Petition dismissed.