P L D 1995 Supreme Court 281 (PLP)

SAAD SAOOD JAN, J: --In these six matters the validity of Regulations Nos. 1 and 2, both of 1975, made by Governor, N.-W.F.P., has been challenged. five of these matters have come before us by way of appeal by special leave from the judgment of the Full Bench of N.-W.F.P. High Court which has held these Regulations to be violative of Article 25 of the constitution. The sixth is a petition under Article 184(3) of the Constitution and raises the same questions as have been canvassed in the other five matters.

2. All these matters relate to the Districts of Swat and Dir which were formerly semi-independent States and had acceded to Pakistan.

3. By Regulation 1969 issued. by the Administrator of Martial Law,l Z,..4-A, the administration of the territories of these States was take away from their respective rulers and was assumed by the then Government of West Pakistan. Paragraph 6 of the Regulation authorised the Provincial Government J to constitute the territories falling in the said States into such administrative unit or units as it deemed fit. In exercise of this grower the Government divided the territories so coming under its administrative control into, districts anti made them part of the Malakand Division,

4. The Province of West Pakistan was dissolved by President's Order No.l of 1970 with effect from 1st July, 1970. By Paragraph 4 of the Order, read with the relevant entries in the Schedule to the said Order, the territories of the abovementioned States were included in the North-West Frontier Province. The Governor of North-West Frontier Province, with the approval of the President, made a number of Regulations, beginning with Regulation No.1 of 1971, whereby a number of statutes which were in force in the other parts of the Province were extended to these territories. The statutes so extended included the Evidence Act, Criminal Procedure Code,. Pakistan Penal Code, Civil Procedure Code, Civil Courts Ordinance, Suits Evaluation Act, Contract Act, Arbitration Act and Transfer of Property Act. The Courts of Magistrates, , Civil Judges and District and Sessions Judges were set up to administer these laws. These Courts are still functioning in the Areas.

5. In 1973 when the new Constitution came into force, by Article 246 thereof, the territories of the said States were grouped together with certain other areas and formed into the Provincially Administered Tribal Areas, hereinafter referred to as the Areas. By operation of Article 247 of the Constitution the administration of the Areas became the exclusive concern of the Provincial Governor and the President. Even though the Areas were included in the territorial limits of the Province and fell. within its executive authority yet no law made by the Provincial Assembly could extend to them unless the Governor, with the approval of the President issued a specific direction to that effect; and, while giving a direction the Governor could modify the relevant law. Similarly no law made by the Parliament could apply to the Areas without a direction from the President and the President could, too, modify the law while giving such a direction. Further, the * President and the Governor were empowered to make Regulations for the peace and good Government of the Areas.

6. On 26-7-1975, with the approval of the President, the Governor promulgated Regulation No. I of 1975, also known as the Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation, whereby, two parallel judicial systems relating to the administration of criminal justice were set up in the Areas. The offences created by the Pakistan Penal Code were divided into two parts in accordance with the Schedule to the Regulation; the offences falling in Part-I became triable exclusively by Tribunals to be constituted by the Deputy Commissioner; the offences falling in Part-11 could also be tried by a Tribunal but only with the consent of all the parties concerned. In respect of offences falling in Part-I the initial cognizance of an offence was to be taken only by the Deputy Commissioner. He could do so on receiving a complaint or on a report from a police officer or on information otherwise obtained or on personal knowledge. He was required to constitute a Tribunal consisting of five persons; one of whom was to be a Government official not below the rank of Tehsildar. The Tribunal was merely a fact-finding body and had no power to punish an offender on its own. On the other hand, the Deputy Commissioner was not bound by the findings of the Tribunal except where the Tribunal unanimously or by a majority of four-fifths found an accused person not guilty; but in this case too he could get over the findings of the Tribunal by recording an opinion that there had been a material irregularity or that the proceedings of the Tribunal had been conducted in a manner so as to occasion miscarriage of justice. However, that may be, the decision of the Deputy Commissioner was appealable before the Commissioner and the order made by the Commissioner in appeal could be revised by the Provincial Government. One salient feature of the Regulation was that serious offences like murder, robbery, dacoity and sedition were kept out of the purview of the Tribunal.

7. Similarly, on the same day, that is, 26-7-1975, with the approval of the President, the Governor promulgated Regulation No.2 of 1975 also called the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation. Here again the civil disputes were divided into two categories. Part I included disputes other than those. relating to land in which the value of the claim or the subject-matter did not exceed Rs.5,

000. The disputes not covered by Part I fell in Part II. All disputes in Part I, with some exceptions were to be tried by a Tribunal consisting of three members, one of whom was to be a Government official not below the rank of Tehsildar. Cases falling in Part II could also be referred to the Tribunal by the Deputy Commissioner if all the parties agreed in this regard. The cases relating to disputes falling in Part I were to be instituted before the Deputy Commissioner. If the Deputy Commissioner found that the dispute raised was not barred by time he was required to set up a Tribunal and refer the case to it. Here again the Tribunal was merely a fact-finding body. The Deputy Commissioner was required to give his decision or pass a decree in terms of the opinion of the Tribunal unless he found that the Tribunal had committed some material irregularity or had conducted the proceedings in a manner as to cause miscarriage of justice. The appeal from the decision or decree of the Deputy Commissioner lay before the Commissioner and the latter's order could be revised by the Provincial Government.

8. On 29-12-1976 the Governor, with the approval of the President, made another Regulation known as Regulation No.4 of 1976. This Regulation amended the earlier two Regulations, that is, Regulations Nos.l and 2, of 1975, by extensively enlarging the jurisdictions of the Tribunals which were now to be called as Jirgas. The classification made in the two Regulations was done away with; the Jirgas were given exclusive jurisdiction in respect of all offences under the Pakistan Penal Code except offences against the State or those relating to the armed forces, elections, coins and Government stamps; similarly, the Jirgas could adjudicate on all disputes of civil nature except those which already stood exempted under Regulation No.2 as originally framed. A Naib-Tehsildar could preside over a Jirga seized of a criminal case and, if he was also vested with the powers of Tehsildar, he could even preside over a Jirga hearing a civil dispute. The Jirgas continued to be merely fact-fording bodies and, as before, the Deputy Commissioner alone possessed the power to make effective and enforceable orders and decrees.

9. Regulation No.I of 1975 was further amended by the Governor with the approval of the President by a Regulation made by him on 11-1-1978. By this Regulation offences against public tranquillity or relating to contempt of lawful authority of public servants, false evidence and public justice were excluded from the exclusive jurisdiction of the Argas.

10. Civil Appeals Noh,543, 544 and 547 of 1990 arise out of criminal cases where the police, after investigations, submitted challans before the Local Assistant Commissioners who were vested with the powers of the Deputy Commissioners * under the Regulation No.I. Despite the protest of the complainants in the two cases the Assistant Commissioners concerned constituted Jirgas for the trial of the accused. The orders of the Assistant Commissioners were challenged in appeal before the Commissioner by the complainants and in revision before the Provincial Government but without any success. The complainants then filed Constitution petitions in the High Court to inter alia call in question the validity of Regulation No.I of 1975.

11. Civil Appeal No. 545 of 1 also relates to a criminal case. Respondent Ameer Khan, vas arrested in a murder case. He applied for bail before the Assistant Commissioner, Aluch, Swat Distract. It was dismissed. He filed an appeal before the Additional Commissioner and later a revision ,petition before the Provincial Government but without any success. He too invoked the Constitutional jurisdiction of the High Court to call in question, inter alia, the validity of Regulation No.I of 1975.

12. Civil Appeal No. 546 of 1990 arises out of a civil matter. In a suit filed for redemption of mortgage the mortgagee took up the plea of limitation. The plea was rejected by the Assistant Commissioner, Swat, who was also vested with the powers of the Deputy Commissioner. Yousaf Khan, respondent No.l 'had purchased the rights of the mortgagees. He moved an application for being impleaded as a party to the suit. His application was dismissed by the Extra Assistant Commissioner and his appeal before the Additional Commissioner. Malakand Division, and the revision petition before the Provincial Government retrained unsuccessful. He invoked the Constitutional jurisdiction of the High Court to challenge the validity of Regulation No.11 of 1975.

13. In Human Rights Case No. 50 of 1992, the petitioner is a woman- She. has been charged with causing the death of one Said Khan. She was released on bail by the Assistant Commissioner, Butt-Khella. However, the bail granted to her was cancelled by the Additional Commissioner, Malakand Division, and the order of the Additional Commissioner was upheld by the Provincial Government. She too has challenged the legality of Regulation No.I of 1975.

14. The Constitution petitions filed in the Hlgh Court were heard by the Full Bench comprising Fazal Elahi Khan, Nazir Ahmad Bhatti and Qazi Muhammad Jamil, JJ. Their Lordships were of the view that Regulations Nos.l and II of 1975, hereinafter referred to as the Regulations, were violative of Article 25 of the Constitution and were for that reason void. Accordingly, they directed that the accused persons in the relevant Constitution petitions should be tried by the ordinary criminal Courts. They also directed that the Jirga constituted to try the redemption suit did not have the jurisdiction to hear the same and that the suit should be transferred to a Civil Court of competent jurisdiction for disposal in accordance with law.

15. The learned members of the Full Bench observed that from the political or administrative point of view the Areas to which the Regulations in question applied did not differ from the other parts of the Province. The ordinary law, both procedural and substantive, were in force in the Areas as well and the only difference was that the Jirgas were not bound by the Criminal Procedure Code, Civil Procedure Code and the Evidence Act. However, the classification of offences and civil disputes for creating exclusive jurisdiction in the Jirga was not based on any reasonable ground. It also appeared that the makers of the Regulations themselves did not have any confidence in the competence of the Jirgas to hold proper trial for all matters where the interest of the State itself was directly involved, whether these related to criminal charges or constituted disputes of civil nature, were kept out of the reach of Eric Jirgas. On the other hand the citizens of Pakistan who resided in the Areas stood deprived of the well-recognized safeguards that governed criminal trials in the ordinary criminal Courts. Even though the Regulations were extremely discriminatory yet the preambles appended thereto did not spell out the reasons why a separate judicial system was being set up in the Areas. On the other hand, neither Swat nor Dir had any history of Argas at all before the promulgation of the Regulation. The learned Judges also pointed out:-- "Swat was being governed by customary law and there was a department of QAZI apart from' hierarchy of officials administering justice. Similarly, Dir had a complete code called `Dastoorul Amal'. After the merger not only in Swat and Dir, but in the entire Provincially Administered Tribal Areas which have now been brought within the purview of the Regulation, the ordinary laws both criminal and civil were made applicable. With the introduction of Criminal Procedure Code and Evidence Act in the year 1970 and later on with the introduction of Civil Courts Ordinance and Civil Procedure Cod,-, the inhabitants of the said areas passed peacefully into the age of rule of law. For nearly four years, the Courts functioned with the procedure as is available in the rest of Pakistan. Therefore, it is not comprehensible as to what were the special requirements which were being met by making the impugned Regulations," The learned Members of the Full Bench also noticed that the dual system of justice introduced by these Regulations in the Area had created many anomalies. The rigid classification of cases and offences for the purpose of conferring exclusive jurisdiction upon the Jirgas not infrequently led to impossible situation. In the course of the same transaction very often a number of offences were committed. On account of the said classification only some of them were triable by a Jirga; for the others recourse had to be taken to the i ordinary criminal Courts which also functioned in the Areas. The trials held in the two jurisdictions could lead to different results although the evidence before the two forums was the same. Apart from that, in civil matters the Jirgas were not competent to hear cases where one of the parties was a minor. Sometimes when Jirga, was seized of a case one of the parties died, leaving behind a minor as his legal representative. This necessitated the transfer of the case to the ordinary Civil Court; again, while the case was still pending before the Civil Court the minor attained majority; in that event the suit had) to go back to the Jirga; the uncertainty thus created with regard to forum where the trial might be concluded led to inequality before law and militated against the concept of equal protection of law. Such an inequality was aggravated by the fact that the parties were forced to get their cases decided by uneducated members of Jirga despite the fact that Courts presided by trained educated Judges were functioning in the Areas.

16. The learned Members of the Full Bench also repelled the arguments that the people living in the Areas were happy with the system and in this context quoted from the report of Mr. Justice Allah Bakhsh Khan who was in 1981 asked to assess the public opinion and to find out the possibility of the enforcement of the normal laws in the Areas. In his report Mr. Justice Allah Bakhsh Khan recommended: "It would, therefore, be in the interest of national integrity that uniform civil and criminal laws are enforced in the District of Dir, Swat and Chitral as well as the Malakand protected area and the entire Division is brought at par with the other parts of the country in the field of administration of justice. The `Riwaj' has outlived its utility and the people of this Division deserve to get rid of the evils of `Riwaj' which were perpetuated during the tyrannical rule of the despotic Nawab ... ... ... .. ... :.. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... It is, therefore, recommended that in view of the real need of the hour and in the interest of national integrity, the PATA regulations enforced in-the District of Dir, Swat and Chitral be replaced by the normal laws of the country and the entire Provincially Administered Tribal Area be brought at par with the other parts of the land." Aggrieved by the judgment of the High Court the Provincial Government has by leave come in appeal to this Court.

17. During the course of the preliminary hearing of the petition preferred by Mst. Niaz Parwarah made under Article 183(2) of the Constitution, a learned Judge of this Court called for the comments of the members of the Parliament and Provincial Assembly, High Court Bar Association, District Bar Association, eminent lawyers and the administration. The learned Judge considered the views expressed by them and then referred the petition to the learned Chief Justice for further proceedings with the following observations: "The perusal of the documents so far placed on the record reveals that the members of the Bar, the public-at-large and the public representatives are not fully satisfied with the functioning of PATA Regulations for various reasons mentioned/described in the reports. Even the functionaries of the Government have, from time to time, recommended to the Provincial Government for either the total repeal of the PATA Regulations of drastic amendments therein for removal of the anomalies and providing for qualifications of Jirga members and the chairman."

18. Article 247 of the Constitution makes provision for the administration of the Tribal Areas. As already stated the Regulations under consideration have been framed by the Governor under this Article. It reads as follows: "

247. Administration of Tribal Areas.--(I) Subject to the Constitution, the executive authority of the Federation shall extend to the Federally Administered Tribal Areas, and the executive authority of a Province shall extend to the Provincially Administered Tribal Areas therein. ;2; The President may, from time to time, give such directions to the Governor of a Province relating to the whole or any part of a Tribal Area within the Province as he may deem necessary, and the Governor shall, in the exercise of his functions under this Article, comply with such directions. (3) No Act of Majlis-e-Shoora (Parliament) shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of Majlis-e-Shoora (Parliament) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs; and in giving such a direction with respect. to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and notifications as may be specified in the direction. (4) Notwithstanding anything contained in the Constitution, the President may, with respect to any matter within the legislative competence of Majlis-e-Shoora (Parliament), and the Governor of a Province, with the prior approval of the President, may, with respect to any matter within the legislative competence of the Provincial Assembly make regulations for the peace and good Government of a Provincially Administered Tribal Area or any part thereof, situated in the Province. (5) Notwithstanding anything contained in the Constitution, the President may, with respect to any matter, make regulations for the peace and good Government of a Federally Administered Tribal Area or any part thereof. (6) 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. (7) 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: Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day." 19: To begin with, Mr. K.M.A. Samdani who appeared on behalf of the Provincial Government argued that the expression 'any law' us occurring in Article 8(i) of the Constitution did not include a Regulation framed by the President of the Governor in exercise of his power under clauses (4) and (5), Article 247. and that the term `State' as occurring in Article 7 did not refer try the President or the Governor; consequently, a Regulation made by any of them could not be tested on the touchstone of the Fundamental Right relating to the equality before law as guaranteed in Article 25 of the Constitution; laws, the High Court was not right in declaring the Regulations as void on account of their alleged conflict with the said Fundamental Right.

20. It seems difficult to subscribe to the view canvassed by Mr. Samadani that the expression `any law' as used in Article 8(1) does not encompass a Regulation made under Article 247(4) or that the term `State' as occurring in Article 7 does not include the President and the Governor. Article 8(1), ibid, reads as follows: "Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency be void." The word `any' is ordinarily used to enlarge the amplitude of the term to which it is attached and there seems to be no reason why the expression `any law' as occurring in Article 8(1) be so narrowly construe] as td exclude from its purview a Regulation which possessed the efficacy of law ire a part of Pakistan, particularly when its effect has been extended to all customs arid usages which have the force of law. Article 7 falls in Part II of the Constitution which bears the rubric Fundamental Rights and Principles of Policy. The said Article reads i as follows: "

7. Definition of the State.-- In this Part, unless the context otherwise requires, `the State' means the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess." It will be noticed that the definition of the `State' as given in this Article is fairly wide; on its plain reading it would appear to encompass all authorities which perform executive and legislative functions in any part of the country. So far as the Areas are concerned, the President and the Governor while exercising their powers under Article 247 stand in the position of the Federal 8 and the Provincial Governments. There is therefore no reason why they should be excluded from the definition of the `State' so far as the Areas are concerned. In fact, to hold otherwise, would tend to deprive a sizeable part of i the Pakistan citizenry of the Fundamental Rights enshrined in the Constitution which could never have been the intention of the Constitution-makers.

21. As stated earlier, the High Court has declared the Regulations to be void on the ground that they violate the Fundamental Right as incorporated in Article 25 of the Constitution. The said Article is expressed in the following terms: ,, "(1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex alone. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children." There is no doubt weight in the observations of the High Court that the dual system of justice introduced by the Regulations places the residents of the Areas in less advantageous position as compared to their fellow countrymen living in the other parts of Pakistan, but then it will be noticed, Article 247 itself envisages that the laws that may be made by the President or the Governor or the two together for the Areas may be different from those prevailing in the rest of the country. Thus, clause (3) of the Article permits the President and the Governor to modify the laws made by the Parliament or the Provincial Assembly before extending them to the Areas. This by itself C introduces an element of discrimination so far as the Areas are concerned. Apart from that clause (4) which empowers the President and the Governor to make Regulations for the Areas contains a non obstante clause; consequently, a regulation made by them cannot be declared invalid by mere reason of the fact that it is in conflict with the other provisions of the Constitution. I therefore, find some difficulty in holding that a law made by the President or Governor under Article 247 can be declared void on the ground that it is different from the corresponding law in force in the other parts of Pakistan and is thus in conflict with the Fundamental Right relating to equality of treatment.

22. However, there is another aspect of the matter. No doubt, the Federal Government and the Parliament, the Provincial Government and the Provincial Assembly have been precluded by Article 247 from exercising their respective functions in the Areas and the same have been entrusted to the President and the Governor but that does not necessarily imply that the President and the Governor have and will have a free-hand for all times to come in making laws of their own choosing for the Areas. In this context reference may be made to the Objectives Resolution which now forms a t substantive part of the Constitution (see Article 2A). One of the clauses of the Resolution declares that in Pakistan the-State power and the authority shall be exercised by the chosen representatives of the people. Although in view of the conditions that prevail there the Constitution-makers did deviate from the said declaration when making special provisions for the administration of the Areas but then they also envisaged the ultimate raising of the quality of the administration therein to the same status and position as was enjoyed by the rest of the country. In this context, clause (6) of Article 247 of the Constitution needs to be noticed. It reads as follows:-- "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." The clause when read with the Objectives Resolution places a special responsibility on the President and also on the Governor in respect of the Area. The extraordinary power that has been vested in them must be exercised in a manner that would facilitate the introduction of representative administration in those Areas and thus bring them at par with the other parts of - Pakistan. Any legislative and administrative measure which obstructs or delays this ultimate goal must be held to be beyond the bounds of this power.

23. There is no doubt whatsoever that the President and the Governor are high functionaries of the State and one can normally assume that in exercising their power under Article 247 they are and will be motivated by a high sense of responsibility but then it has also to be kept in mind that they are not the chosen representatives of the people for exercising legislative and executive powers in the Areas. The theme throughout our Constitution is of responsible Government which is answerable to the people. It is therefore necessary that when the President or the Governor make a law for the Areas which is, different from that prevailing in the rest of the country it must be accompanied by good reasons. The omission in this regard would possibly lay the President or the Governor open to the charge of arbitrariness and on that account compromise the validity of their action whether it is in the legislative field or it relates to a purely administrative act.

24. As already noticed, the administration of the States of Dir, Swat and Chitral was taken over first by the Government of West Pakistan and later, after dissolution of the said Province, by the North-West Frontier Province. The Court system which existed in the rest of the Province was introduced in these States as well. The Courts thus set up continued to function till July 1975 when by the Regulations under consideration slight inroads were made in their jurisdiction in respect of comparatively less serious criminal matters and almost petty civil disputes. However, that may be, a year and half later the Regulations were extensively amended and as a result thereof the Tribunals were replaced by Jirgas and were given the exclusive jurisdiction over serious crimes and civil disputes. Learned counsel appearing before us did not care .to give reasons why the then existing judicial system had been replaced. There can be little doubt that the Regulations, trespassed as they did on the jurisdiction of the ordinary Courts, were pieces of retrograde legislation and in the absence of any visible justification, constituted in a way a negation of the goal set out in p clause (6), ibid, and the Objectives Resolution. Although highly qualified and trained judicial officers, well-equipped to administer relevant laws relating to serious crimes and civil disputes, continued to be available in the Areas yet, as a consequence of the Regulations, their jurisdiction was drastically curtailed and entrusted to persons of little academic and professional qualifications. As noticed, the Jirgas are presided over by Naib-Tehisldars/Tehsildars who in the hierarchy of the Courts existing elsewhere in Pakistan do not exercise powers higher than that of a Magistrate of the First Class. It is true that the power to make effective orders vests in the Deputy Commissioner but then he too may not have any grounding in law. The appeals and revisions from the orders of the Deputy Commissioner do not lie before the District and Sessions Judge or the High Court but before the functionaries occupying positions in the executive. It is thus a system entirely controlled and administered by non judicial functionaries of the Province. It is true that Article 247 overrides the other provisions of the Constitution but then the President and the Governor ought not to lightly ignore the Constitutional mandate as .' incorporated in Article 175(3) that the Judiciary should be separated from the Executive.

25. The argument that the Jirga system as introduced by the Regulations in question is better suited to the needs of the Areas is of extremely doubtful validity. As already noticed, Mr. Justice Allah Bakhsh, quondam Judge of the Peshawar High Court, was appointed by the Provincial Government to examine the laws in force in the Areas, elicit public opinion and look into the feasibility of the enforcement of the normal laws therein. The learned Judge held meetings with public representatives, members of the Federal and Provincial Advisory Councils, Chairmen, Vice-Chairmen and members of the District Councils and after considering the various opinions presented before him he expressed the view which has already been reproduced in paragraph 16 above. It is somewhat surprising that this report remained dormant in the State archives till it was produced before the High Court. While holding preliminary proceedings in the Human Rights Case No.50 of 1992 a learned Judge of this Court also solicited views from members of the public as well as administration. Barring the representatives of the administration the others condemned the Regulations in strong terms and asked for the restoration of the judicial system in the other parts of Pakistan. Reference in this context may be made to an extract from the almost identically worded resolutions of the Awami National Party, Pakhtoon Khawan, Jamaat-e-Islami and Pakistan People's Party of Boner District. The extract reads as follows: Mr. Wajid Ali, a member of the Provincial Assembly from Swat, had, amongst others, the following comments to offer on the Regulations:

"(1) PATH Regulations I and 11 of 1975 (amended later) lack legislative sanction. There are laws not enacted by legislatures but laws made by Home Department. These are not made in the interest of the people, but made to facilitate job of the administration. The orientation is administration, not justice. (ii) These . Regulations lack judicial sanctity. Even the High Court has declared them to be derogatory to fundamental- rights. (iii) Even the framers of these Regulations knew that justice could not be delivered by the forums created thereunder; therefore, did not invest them with powers to award death sentence in murder cases or adjudicate upon matters involving interests of the insane minor or act of Government functionary. (iv) The Regulations are discriminatory and derogatory to Islam. These aspects have been fully explained in the judgment of the Peshawar High Court. (v) The Regulations are retrogressive. The people governed by these Regulations have been deprived of judicial protection and have been pushed to the mercy of Executive Officers. This is just opposite the Constitutional provisions that judiciary shall be separated from executive. (vi) The Regulations have entrusted application and interpretation of highly technical laws to illiterate Jirga members with Executive Officer as Chairman. This is travesty of the very concept of justice." Mr. Abdul Matin Khan, a member of the National Assembly and Mr. Bakht Jehan, a member of the Provincial Assembly made the following observations: "That as the Jirga Members have been ensured no cash or other considerations and facilities by the authorities, therefore, they take no sincere interests in the conduction of the proceedings. The non attendance of the Jirga Members in the Court proceedings causes inordinate delay in the disposal of the disputes and the available ordinary Courts are languishing under the heavy burden of `pendency'." Malik Basharat Ali and Pir Muhammad Khan, both members of the Provincial Assembly from Swat, made the following suggestions: The Bar Associations of Swat, Dir and Malakand were unanimous in condemning the imposition of the Jirga system through the Regulations in these districts. Thus, the President of the Bar Association of Malakand stated: "The traditional Feudal-lord and bureaucrats (sic) who used to rule the public of their areas during the old days of F.C.R. and so many others having vested interest, could not tolerate the `Rule of law'. They were not happy with just decisions of the Judges hence they manipulated to usurp the powers of the Court of law alongwith the rights of the people of this area. As a result of complicity between the so-called local elders and bureaucracy they succeeded in getting (PATA Criminal Law) Special Provision Regulation I of 1975 and PATA (Civil Law) Special Provision Regulation 11 of 1975, after having prompted the local lower classes to fire at Jawans of F.C. over Forest Royalty. The news of enforcement of PATA Regulation had come as a bolt from the blue for the general public of Malakand Agency. Neither the general public of this area had any special requirement nor there was any need nor any demand for making special provision as mentioned in its preamble. The bureaucracy had capitalized out of the petty Forest Royalty dispute at Dir. Some local lawyers, students leaders and office-bearers of Political Parties had observed 24 hours hunger strike at Mingora in token of their resentment, against the enforcement of PATA Regulation, as they had realised the gravity of the situation and its consequences. Almost all District Presidents and General Secretaries of all Political parties including Pakistan People's Party, Jamait-i-Islami, Jamiat-ul Ulema Islam, Mazdoor Kissan Party, Official Muslim League, Awami National Party and Pakhtoon Khawa Party etc. in a joint meeting had passed the famous `RESOLUTION OF MALAKAND' demanding immediate withdrawal of PATA Regulation from this area. They had also called on Provincial Law Minister, Peshawar Federal Minister for Law, Justice and Parliamentary Affairs, Islamabad, demanding immediate abrogation of PATH Regulation from Malakand Agency. Almost' all Political parties have passed resolution in their public meetings, demanding immediate withdrawal of PATA Regulation from Malakand Agency, but in vain." Although the administration supported the Regulations yet it itself was not satisfied vAth their working in the Areas. Thus, in his Letter No.404/10/Judl., dated 24-2-1989 the Commissioner while addressing the Minister for Forests in the Government of North-West Frontier Province stated: "The frustration of the public against the Provincially Administered Tribal Areas Regulations is primarily because of the long delays in adjudication and the heavy expenses involved. Though the Jirga ought to be nominated by the Courts with the consent of the parties but since consensus of opinion is never arrived at the result is that each party nominates half of the number of Jirga members. As such the Jirga so constituted does not enjoy as a body, the confidence of the parties, but represents two divergent and conflicting groups advocating the interest of its principals while ignoring the judicial issues and facts of the case. In case the parties agree to the nomination of impartial Jirga members, it becomes difficult for the Chairman of the Jirga to procure their attendance regularly due to lack of interest on their part and the trial is delayed for lack of quorum etc. The cases are also delayed for reasons that the attendance of witnesses is very poor in the Courts of Chairman of the Argas who generally consist of Tehsildars or Naib-Tehsildars. In addition to it there are some other legal anomalies which delay the trial of the cases causing frustration amongst the litigants. For instance a criminal case under section 302/148/149, P.P.C. is tried in two different Courts under different procedures i.e. section 302, P.P.C. is tried by PATA Courts whereas the offence under section 148/149, P.P.C. is tried by regular Courts (Magistrate 1st Class). Similarly a civil case being tried under PATH Regulation for years is shifted to the Civil Judge for fresh trial on the death of a person contesting the case if his offspring is a minor." It is somewhat surprising that despite the shortcomings pointed out by the Commissioner no remedial steps were taken.

26. In view of what has been stated above it is difficult to regard the Regulations in question as measures conducive to the peace and good Government of the Areas for they have not only-replaced the ordinary judicial system which is in force in the other parts of Pakistan without any apparent justification but have introduced a set up which is condemned by the residents of the Areas. They can therefore hardly be regarded as legitimate exercise of the extraordinary power which the President and the Governor enjoy in reference to the Areas under Article

247. I would accordingly decline to interfere with the unanimous opinion of the High Court that the Regulations are not pieces of valid law though on different grounds. I would accordingly dismiss all the appeals preferred by the Provincial Government with costs. I would also dismiss the Human Rights Case as it does not involve a violation of a Fundamental Right. It may, however, be added that this judgment will not affect cases, both criminal and civil, which have since been disposed of by the Argas constituted under the Regulations. (Sd.) SAAD SAOOD JAN, J. SHAFIUR RAHMAN J: --I had the benefit of reading with great interest the draft judgment. My learned brother has with great lucidity applied the test of intrinsic qualification of object and purpose of "peace and good Government "mentioned in clauses- (4) and (5) of Article 247 for declaring the Regulations as bad laws leaving intact the judgment of the High Court impugned before us. In the Human Rights case though the challenge is to the same laws, relief has been denied presumably because the test of Fundamental Right was not at all extended and original jurisdiction could not be exercised by this Court unless the Fundamental Right could be invoked as a test. The judgment of the High Court impugned before us proceeds without discussion on two assumptions. The first assumption is that notwithstanding clause (7) of Article 247 of the constitution, to the following effect the jurisdiction of the High Court and Supreme Court extends to the Tribal Area under discussion:-- "

247. Administration of Tribal Area.-- (1) ........................... (2) ........................... (3) ................................................................. ` . (4) ........................... (5) ..................................................................... ' (6) ........................... (7) 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: Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before commencing day."

3. The second assumption in the High Court judgment is that Fundamental Rights enshrined in Chapter 1, Part 11 of the Constitution are available for testing the vires of Regulations framed by President or the Governor, promulgated and applied in that area in exercise of power conferred by clause (5) of the same Article, notwithstanding the non obstante clause with which it beings. These two assumptions require a legal basis for their sustenance.

4. As regards the first assumption, reference may be made to the Supreme Court and High Court (Extension of Jurisdiction to Certain Tribal Areas) Act, 1973. (Central Act XXVII of 1973) which reads as follows:-- "

1. Short title and commencement.--(1) This Act may be called the Supreme Court and High Courts (Extension of Jurisdiction to Certain Tribal Areas) Act, 1973. (2) It shall come into force at once.

2. Extension of Jurisdiction of Supreme Court.--The Supreme Court of Pakistan shall have, in relation to the Provincially Administered Tribal Areas of Chitral, Dir, Kalat, Swat and Malakand Protected Area, the same jurisdiction as it has in relation to the other areas of the North-West Frontier Province.

3. Extension of Jurisdiction of High Court.--The Peshawar High Court shall have, in relation to the Tribal Areas specified in section 2, the same jurisdiction as it has in relation to the other areas of the North West Frontier Province."

5. The effect of this law was examined by this Court in "Abdul Rahim and others v. Home Secretary, Government of West Pakistan and another" (PLD 1974 SC 109) and following observations made:-- "With the coming into force of the Supreme- Court and High Courts (Extension of Jurisdiction of Certain Tribal Areas) Act, 1973 (Act XXVII of 1973) the normal jurisdiction of the Peshawar High Court including the Constitutional jurisdiction under Article 195 of the Constitution, now extends to the Provincially Administatcd Tribal Areas of Chitral, Dir Swat and Malakand Protected Area, as the Court has, in the other areas of the North-West Frontier Province."

6. The jurisdiction of the High Court and Supreme Court, therefore, exists over these territories.

7. As regards the second assumption I have already held in the case of "Mian Muhammad Nawaz Sharif v. Federation of Pakistan" (PLD 1993 SC 473 at page 639) that thr; Fundanzeutai Rights extend to Tribal Areas and that even the executive authority of the Federation is controlled by it as are all executive acts under Article

4. This aspect has been further explained in the decisions oaf this Court in "Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue; Department, Government of East Pakistan (PLD !957 SC (Pak.) 9 and "Easy and West Steamship Co. v. The Collector of Customs and others" (PLD 1971: SC 618).

8. Finally the question is whether the non obstante provision in clause (4) of Article 247 absolves the President and Governor of observing the Fundamental Rights. The scope of the non obstante clause is shittled down by the use of the expression legislative competence in the same empowering clause. The commanding words of Article 8 "The State shall not make any law which takes away or abridges the rights so conferred" affects the competency of respective legislatures. The President or the Governor cannot H on the strength of non obstante clause and in the presence of the expression "within the legislative competence overstep in the domain of legislative incompetence".

9. The Regulation under examination is according to me violative of-- (1) Constitutional guarantee of equality of citizens (Article 25). It does not satisfy the legitimate criteria of classification. (ii) Constitutional mandate of clause (3) of Article 175 which came into effect and became fully enforcible as and from 15th August, 1987. (iii) Constitutional requirement of clauses (4) , and (5) of Article 247,1 "Peace and good Government not being satisfied, as held by my learned brother."

10. As the Human Rights case attacks the applicability of this very law, and fundamental right of equality is violated by it, the same declaration should follow in that, in exercise of our original jurisdiction under Article 184 (3) of the Constitution. Besides, the applicant in that case be admitted to bail in the sum of rupees fifty thousand with two sureties in like amount to the satisfaction of the High Court. I am in respectful agreement that this decision shall not affect cases already concluded finally. (Sd.) . SHAFIUR RAHMAN, J. NASIM HASAN SHAH, J: --I agree. . SALEEM AKHTAR, J: --I agree.; ORDER OF THE COURT In accordance with the unanimous opinion of this Court the appeals preferred by the Provincial Government, that is, Civil Appeals Nos. 543, 544, 545, 546, and 547 of 1990 are dismissed with costs; further in accordance with the majority opinion the petition preferred by Mst. Niaz Parwarah (Human Rights Case No. 50 of 1992) is accepted and she is admitted to bail in the sum of Rs.50,000 with two sureties in the like amount to the satisfaction of the High Court. (Sd.) , NASIM HASAN SHAH, J. (Sd.) SHAFIUR RAHMAN, J. (Sd.) SAAD SAOOD JAN, J. (Sd.) SALEEM AKHTAR, J M.BA./G-495/S Order accordingly.