P (PLP)

WAHIDUDDIN AHMAD, J‑The question referred to the Full Bench is as under Whether or not the jurisdiction of the High Court under the Civil and Criminal Procedure Code is excluded under Article 178 of the defunct Pakistan Constitution of 1956. The facts giving rise to this reference are that Messrs Pakistan Industries Ltd instituted a suit for the recovery of Rs. 3, 69,612‑2 O as damages, known as Suit No. l of 1960 in the Court of the District Judge, Quetta, against the petitioners, a limited Company. This suit is an offshoot of 'a dispute between the parties in respect of ‑171,5 acres of mining land situated at Dalbandin in the Special Areas of Baluchistan. The petitioners on 11‑2‑1957 through Mir Kadir Bakhsh, one of their Directors, obtained from the District Magistrate, Chagai, an order under section 145, Cr. P. C., against the opponents for the attachment of the said land on the ground that it was in their exclusive possession, but on 7‑8‑1959 after contest it was discharged. Thereafter the opponents instituted the aforesaid suit for damages in. the District Court, Quetta, alleging that the order for attachment was obtained maliciously resulting in heavy loss and damage to their business. The petitioners challenged the jurisdiction of the District Judge to hear the suit as the land in dispute was situated in the Special Area‑ and the Court concerned had no jurisdiction over it. The learned District Judge overruled the preliminary objection by an order dated 28‑7‑1960. He assumed jurisdiction in the matter for the following reasons: "'Assuming for a moment, as contended by the learned counsel for the defendants, that the cause of action arose at Dalbandin, even then the jurisdiction of this Court in respect of this case is not barred by any law whatsoever. Section 7 of the Establishment of West Pakistan Act, 1955, only bars the jurisdiction of the High Court and not of this Court. By this it will not be construed that as the jurisdiction of the High Court has been taken ‑ away, the jurisdiction of the subordinate Courts has also been taken away." This order is' challenged in Civil Revision Application and the petitioners have prayed for the following reliefs: (a) That the District Judge, Quetta, has no jurisdiction in the matter or in the alternative. ' (b) That tote High Court's jurisdiction in the matter has not been taken away. The revision application came up for hearing before Munshi, J., who, in view of the decision of the Full Bench in Sher Muhammad v. The State (P L D 1957 Quetta 9), has referred the above‑mentioned question for consideration and opinion of the Full Bench. The question referred covers a wide field and shall have to be. considered in its various aspects. It is first urged that as the land in. dispute out of which the claim for money has' arisen is situated in the Special Area, the jurisdiction of the High Court to entertain revisions from the order of the learned subordinate Court in Quetta in respect of such matters is barred under Article 178 of the late Constitution. Reliance is placed on the decision in Sher Muhammad v. The State (P L D 1956 Lah. 1056). In that case a gull Bench of this Court at Lahore held (i) that the: West Pakistan High Court has no jurisdiction over the former tribal areas of Baluchistan and further (ii) that the former leased areas of Baluchistan formed part of the Province of West Pakistan. T he case before the Full Bench arose out of two cases, one from Loralai under the Passport Act and the other, a murder reference from Quetta District and was apparently decided on considera tions of the provisions of the West Pakistan Establishment Act,

155. It is true that Dalbandin is situated in the Special Areas but the Full Bench Decision is not relevant to the point under consideration. The offence under the Passport Act was committed in Loralai and obviously the High Court of West Pakistan had no jurisdiction in such matters. It appears to us that the question involved has to be decided on consideration of Article 178 of the late Constitution. This Article reads as under: "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 Consti tution in relation to the Special Areas." Undoubtedly on the, language of the aforesaid provision this High Court is not competent to exercise any jurisdiction in relation to the Special Areas, and it is perfectly clear that this High Court is not competent to entertain any appeal or revision from the orders passed by any authority in a Special Area whether in a civil or criminal matter. But this does not resolve the difficulty which is involved in the question referred to the Full Bench. The case under consideration was instituted in Quetta and incidentally arises out of a dispute relating to the land situated in the Special Area. The civil revision therefore is not against the orders of‑ the authorities in the Special Area but against the order of a Court subordinate to this‑High Court functioning at Quetta. It is strongly urged that the words "In relation to the Special Areas" have a wider import and, include those matters which indirectly. affect person, property and orders passed by authorities in that area. .After hearing the learned counsel for ‑the parties it is quite clear to us that the jurisdic tion of, the High Court under Article 178 was not intended toy be taken away in respect of such cases. This point was mooted in two cases before this High Court at Quetta and Lahore: Dosso v. The State ( P L D 1957 Quetta 9) and Abdul Sami Khan v. Subedar Major Hamesh Gul and another (P L D 1958 Lah. 1039). In the first case certain persons were convicted by the District Magistrate, Loralai, under section 376, P. P. C. read with section 12 (2) of the Frontier Crimes Regulation, 1921 and sentenced to five years R. I. on the basis of an award of Jirga. They were being detained in the Machhi Jail within the jurisdiction of this Court, and moved the High Court under Article 170 of the late Constitution for a writ in the nature of habeas corpus on the ground of illegal and improper detention. It was urged before a Division Bench of this Court at Quetta that the High Court had no jurisdiction under Article 178 of the late Constitution to entertain a writ petition which was likely to affect a decision of the authority in the Special Area, Rehman; C. J., as he then was, repelled this con tention and observed: "The learned Assistant Advocate‑General concedes that this Court would have jurisdiction in a case in which a resident of a Special Area is accused of a crime committed within the territorial limits of this Court's jurisdiction.‑ Obviously, therefore, the expression `in relation to the Special Areas, is not comprehensive enough to include reference to residents of Special Areas who commit a crime outside those areas in Pakistan. ‑ He also acknowledges that in civil litigation between two residents of a Special Area, which proceed in a subordinate Court under the appellate jurisdiction of this Court, the question of legality or otherwise of an order passed by an authority in the Special Area based on a Jirga award may be canvassed in the course of . that litigation, as a collateral issue. Article 178 excludes the jurisdiction of this Court and the Supreme Court but not of the Subordinate Courts in, relation to Special Areas a truly anomalous position. Surely, in such a case if there be an appeal or revision to this Court, there would be nothing to prevent this Court from pronouncing on the correctness or otherwise of the decision of the subordinate Court on such an issue. It would thus appear that this Court is not debarred from expressing an opinion upon the legality or otherwise of orders passed by the relevant authorities in a Special Area, in all conceivable cases. Apparently what Article 178 enacts is that this Court shall not entertain any appeal or revision from the orders passed by the authorities in a Special Area, whether in a civil or a criminal matter. To that extents the Article entails the consequence that although the order in question may. be ultra vires of the Constitution, it is not open to the resident of the Special Area concerned, under Article 170 of the Constitution or under any other provision of law, to approach this Court for redress. The right to 'have the order declared to be invalid from a subordinate Court may exist but the remedy cannot be obtained from this Court. The question resolves itself into the problem whether this Court can issue a writ in the nature of habeas corpus in respect of persons present within the area of its own jurisdiction, if they are being detained under an order illegally passed by an authority over which this Court exercises no jurisdiction." and concluded: "In our opinion, while deciding the present petition, we shall be exercising our jurisdiction under Article 170 not in relation to any Special Area but in relation to the area within our own jurisdiction inasmuch as the petitioners are now confined in a jail which is located within that ‑jurisdiction. The case; therefore, taken out of Article 178 in terms and the bar is no longer applicable. Illegal detention of a person is a continuing wrong. If the petitioners had been retained in Loralai in a jail, obviously this Court could not have been approached for redress, but now that they are amenable to the jurisdiction of this Court, and their jailor or keeper is also subject to the Writ of this Court, there is no reason why the relief asked for should be denied to them. The ouster of jurisdiction of this Court in all cases, should not be lightly assumed. We are of the view that in cases of the present kind, Article 178 raises no bar to the exercise of our jurisdiction." In the second case there was some civil dispute between the Hamesh Gul, a resident of Khyber Agency, and the Sutlej Cotton Mills. .In respect of this dispute a warrant of arrest was obtained from the Political Agent, Khyber Agency, Peshawar and executed in Montgomery. Hamesh Gul gave security for his appearance before the Political Agent but moved the High Court for a Writ of certiorari on the ground that he was not guilty of any offence and the warrant of arrest was intended only to harass him. It was urged before.the High Court that since the petitioner was a resident of a Special Area and the warrant was, also issued by the authorities functioning in a Special Area the High Court's extraordinary jurisdiction on its writ side was barred under Article 178 of the Constitution for considering its validity. The Division Bench of the High Court at Lahore repelled this contention and held that a person living within the jurisdiction of the High Court can demand that he be arrested only .in accordance with law and the jurisdiction of the High Court is not barred in such matters. Kaikaus, J. in that connection observed as under: "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 Court 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." The view expressed in these two decisions of the Division Bench of this High Court is in like with each other and the learned counsel , appearing before us has not 'referred to any contrary view on this point. The real question involved in this reference is whether the revision in question is in relation to the Special Areas. Admittedly the petitioners reside or work for gain in Quetta and the suit having been filed in Quetta, the matter in dispute by no stretch of imagination can be treated as one relating to Special Areas., It seems to us that in all those cases where the resident of a Special Area is accused of committing a crime within the territorial limits of the jurisdiction of this Court or in a civil litigation between two residents of Special Areas or a resident of a Special Area and a resident of the other areas, pending in a Civil Court subordinate to the High Court, this Court is not only competent to consider the validity of the orders passed by the authorities of the Special Area but is also competent to hear revisions and appeals against the order of its subordinate Courts passed in such cases. The condition precedent in the exercise of jurisdiction in such cases will be whether any part of cause of acting arose within the territorial jurisdiction of this Court or whether the order complained of is in respect of matter instituted within the jurisdiction of this Court. It is perfectly clear that on the fulfilment of these conditions the jurisdiction of this High Court is not barred under Article 178 of the defunct Constitution. We are therefore in full agreement with the views expressed in the two Division Bench decisions and are clearly of the opinion that the decision of the Full Bench in Sher Muhammad and two others v. The State has no application on the point before us. In the present case the suit pending in the District Court of Quetta admittedly is a money suit and in such cases the jurisdiction of the Civil Court, depends on consideration of the question whether the case is covered by sections 15 to 20 of the Civil Procedure Code which regulates the forum for the institution of suits in Pakistan. Section 20 of the Civil Procedure Code deals, with the rule as to forum of cases as to personal nature. It F provides that if a defendant resides or actually works for gain or carries on business within the jurisdiction of the Court, the plaintiff has a choice to institute a suit within the jurisdiction of such Court. In Sirdar Gurdyal Singh v. The Rajah of Faridkote (21 I A 171), their Lordships of the Privy Council observed that this salutary rule is applicable to such foreigners as come into the country or have made themselves subject to the jurisdiction of this country. In Gaekwar Baroda State Railway v. Sheikh Habib Ullah (A I R 1934 All. 740 at p. 745), Niamatullah, J. observed: "It is clear to me that a decree passed against a person residing in an Indian State by a Court having jurisdiction under section 20, Civil P.‑ C. cannot be disregarded as one passed without jurisdiction by any Court in British India or one situate in an Indian State" Thus this rule is applicable both to foreigners and foreign corporations and if that is so it is applicable with full force to the petitioners, a Pakistani limited company carrying on business at Quetta. Even if the claim arose out of an actionable wrong done at Dalbandin, the suit could be instituted in Quetta because under section 19, C. P. C., the plaintiff is given an option to sue either where the defendant resides or the wrong was committed and since the revision has arisen from an order passed by the District Judge of Quetta in a civil matter instituted in his Court, the High Court's jurisdiction to consider the illegality, propriety or validity of the impugned order is beyond doubt and unassailable. Accordingly our answer to the question is as under :‑ That the jurisdiction of the High Court is not barred in civil or criminal matters arising from the orders passed by the Subordinate Courts under its jurisdiction although the parties happened to be residents of Special .Area or the property in respect of which the money suit has arisen happens to be in a .Special Area. But the High Court is not competent to entertain appeals or revisions from the orders passed by authorities in Special Areas in any civil or criminal matter. K.M.A. Order accordingly.