Case remanded (PLP)

CORNELIUS, C. J.‑In this case, special leave was granted ,to the appellant Sar Khan to appeal against the dismissal of his habeas corpus petition presented under Article 98 of the Constitu tion and section 491 of the Code of Criminal Procedure, to call in question his imprisonment at Abbottabad in consequence of a conviction recorded against him by a Political Agent, namely, the Additional District Magistrate of Khayber, for an offence under section 307, P. P. C., for which he had been tried under section 11 of the Frontier Crimes Regulation. The following facts are clear. The alleged offence took place at Landi Kotal, which is in tribal territory, on the 23rd June 1964. The case was referred to Jirga by the aforesaid Additional District Magistrate. It is a feature of the case that the order of reference to the Jirga, the entire proceedings before the Jirga as well as its report, and the final order of conviction by the Additional District Magistrate alt were made and carried out on a single day, namely, the 28th October 1964. Each order .was made and the whole proceeding took place at Peshawar, which is not in tribal territory. The writ of the High Court is fully operative in Peshawar. Upon his conviction, Sar Khan was committed to prison in Abbottabad, another place which is not in tribal territory, and where the writ of the High Court duly runs. A learned Single Judge in the High Court dismissed the writ in limine on the single ground that the question whether the High Court bad jurisdiction to deal with the matter was to be' decided not with reference to the place of trial, but exclusively with reference to the place where the alleged offence had occurred. The learned Judge observed that from the mere fact that the trial was conducted at Peshawar, "the matter cannot be construed to have occurred‑ in the settled area, to which the ordinary law is applicable." Special leave to appeal was granted by an order dated the 25th November 1965, which mentions that the case appeared to fall under the principle of the decision in the case of Piao Gul (P L D 1960 S C (Pak.) 307) and that it seemed that the Frontier Crimes Regula tion was no longer law in Peshawar (although it would seem that' it does apply in the tribal territory). We have heard Mr. Ziauddin in support of the appeal, whose argument is that the order of the learned Single Judge in the High Court is manifestly wrong, when it declares that the High Court has no jurisdiction to ‑ examine the proceedings and the orders made in the case, all of which were made in Peshawar. He states that the case of Piao Gul was cited before the learned Judge, although it finds no mention in the judgment under appeal. It is perhaps appropriate that the principle derivable from the case of Piao Gul and from an earlier statement of the law on the subject contained in the case of Dosso (P L D 1958 S C (Pak.) 533) should be clarified for better application in future cases. The following observation made in my judgment in the case of Dosso is referred to in Piao Gul's case, is reproduced for better exposition of the Principle: "In the case of Dosso and Muhummad Khan, the position is materially different in‑so‑far as the trial and all proceedings up to the conviction were held in a `special area' over which the High Court had no jurisdiction. It follows that the High Court had no authority to decide whether the trial and conviction were legal or otherwise. The only matter of which they could be seized was whether these persons were properly held in custody by the Jailer at Machh." It should be mentioned that Machh is a place in a settled area, where the writ of the High Court runs. The judgment went on to find that the duty of the jailer ,was confined to giving effect to a warrant issued by a competent authority for imprisonment of the two persons mentioned, and as to this there was no indication that the warrant, which itself was issued from a place in a "special area" suffered from any defect. (This examination of the legal position as respects the jurisdiction of the High Court is not to be found in any of the other judgments delivered in that case, as mine was a dissenting judgment.) What I meant to say was that if any of the proceedings in the case had been held in a territory where the writ of the High Court ran, it being a judicial proceed ing, or at the very least a pretended judicial proceeding, the High Court had power under the writ of certiorari, then available, to require the proceedings to be certified to the .High Court, and thereupon to examine them, in point of propriety and conformity with law. Since in that case, no part of the proceedings, including the issue of the warrant, had taken place within the jurisdiction of the High Court, the writ of certiorari was not available. But the writ of habeas corpus was available since the detention was in a place within the territorial jurisdiction of the High Court, and it was open to the High Court to examine under what authority the prisoner was being held. That authority was furnished exclusively by the warrants upon which the jailer had acted, and in the view I took, neither of those persons could be released unless the warrant was on its face found either to have been issued by an authority not competent to issue it or to suffer from other defect. The same principle has been applied in the case of Piao Gul. There, the position was that the trial of an offence committed in "a special area" where the writ of the High Court does not run, had been conducted in Peshawar, and "it was only for the pronouncement of the judgment that the Political Agent, Mr. Faridullah Shah took the case to Jamrud Fort." This was stated in refutation of the argument which had prevailed in the High Court that since the. judgment was announced at Jamrud, a place in a special area, and the warrant had also been issued from Jamrud, therefore, the writ of the High Court did not run in respect of the case. Accordingly the Supreme Court proceeded to examine and pronounce upon two arguments presented on behalf of Piao Gul in defeat of the validity of the proceedings and the trial. These of course had been conducted at Peshawar, where the writ of the High Court runs, and under certiorari then available, the High Court had full power to examine into the propriety and legality of all things done in a judicial or a pretended judicial capacity within its territorial jurisdiction. A point taken on behalf of Piao Gul was that a confession allegedly made by him was not genuine. The records were before the Supreme Court, and on examining the record of the confessions, the view was formed and declare that it was "a true and faithful reproduction of the admission" made by Piao Gul. The second argument raised was as to the capacity of the convicting officer, namely, the political Agent Mr. Faridullah Shah to award a sentence in excess of seven years' rigorous imprisonment. After examining the law on the subject, the Supreme Court came to the conclusion that the Political Agent had tried the case in the capacity of Court of Sessions for the Khyber Agency, and further that the description "District Magistrate" (another of the offices he held) appearing under his signature to the judgment of conviction, was misdescription which did not vitiate his order in any respect. The effect of these two decisions is clear, namely, that with respect to ail proceedings held in a judicial or a pretended judicial capacity within the territories where the writ of the High Court runs, the High Court had power it certiorari to examine into their propriety and legality. The High Court also possesses power under habeas corpus, to examine the authority for the'. imprisonment of any person held in a prison in such territories, " notwithstanding that the source of the authority was outside those territories. These powers are now derivable from Article 98 of the Constitution. Here the whole proceedings from start to finest, were held in Peshawar, and the prisoner is confined in Abbottaba6. both places being within the High Court territorial jurisdiction. The impression of the learned Single Judge that the High Court's jurisdiction under Article 98 was excluded by the mere fact of the offence having been committed in tribal territory can only be explained on the basis of a misconception that the High Court was being asked to try the case or to sit in appeal on the conviction. The position was quite otherwise. The purpose of the writ was to invoke the jurisdiction of the High Court to examine into the propriety and legality of everything done at Peshawar from the making of the order of reference up to the issue of the warrant of imprisonment, as well as into the authority for imprisonment at Abbottabad and such jurisdiction the High Court undoubtedly had. The order of the High Court cannot be maintained and we accordingly allow this appeal and setting aside the order of the High Court, direct that Sar Khan's petition should be restored to its proper place and duly decided by the High Court in accordance with law. K. B. A. Appeal accepted.