P L D 2002 Peshawar 42 (PLP)

QAZI EHSANULLAH QURESHI, J.‑‑‑The facts of the captioned petition are that the petitioner started plying his Motorcar No. V‑6511/Karachi as Taxi through his driver named Jehandad son of Gul Janan, resident of Muslim Bagh, Serai Naurang, District Lakki Marwat. On 14‑7‑2000 at 11‑00 a.m. respondent No. 1, namely, Ibrahim Khan booked the said taxi car owned by the petitioner for Mir Ali, North Waziristan Agency, settled hire charges at Rs.700. After covering sufficient distance, respondent No. 1 asked Jehandad (driver) to stop the car and no sooner did he stop the car, two persons duly armed with kalashnikovs appeared on the scene, who alighted the driver from the car. Ibrahim Khan and his two companion took the car and fled towards Mir Ali. The driver of the car promptly reported the matter to A.P.A. Mir Ali as well as intimated the petitioner about the occurrence. Respondent No.2 recovered the motorcar in question from the illegal and unauthorised possession of Ibrahim Khan, but the same was kept in custody by respondents Nos. 1 and 2 and did not return it to the lawful owner. So, the petitioner was constrained to approach the Commissioner Bannu/respondent No.4 and submitted a written application for issuance of directions to the Political Authorities to return the vehicle in question to the petitioner on Supardari, who onward marked the same to the Political Agent/respondent No.3 with the clearcut directions to deliver the car to its legal owner on bail. Respondent No.3 further transmitted it to the A.P.A./respondent No.2 for report. The report to this effect was submitted that the car is handed over to Ibrahim Khan/respondent No. 1, as he has a claim over it. That having no other option, the petitioner lodged a proper complaint against respondent No. 1 in the Court of learned Judicial Magistrate Serai Naurang, District Lakki Marwat, for appropriate action under sections 381‑A/419/420, P.P.C. which was processed and marked to the local police for inquiry and report who submitted that since the occurrence had taken place in the Tribal Area, so the A.P.A. Mir Ali be asked to hand over the vehicle in question to the petitioner, pursuance to which the petitioner again approached the Political Authorities for help bat instead of taking action against respondent No. 1 and returning the car to the petitioner, tried to compel the petitioner to deliver the original documents/registration of the said vehicle to said Ibrahim Khan, which the, petitioner declined and again approached the Commissioner, Bannu as petitioner has lost confidence in the A.P.A. Mir Ali. The Commissioner Bannu very graciously ordered the Political Authorities to take legal action against the culprits and to `return the vehicle to its lawful owner vide order dated 28‑3‑2001. The Commissioner Bannu even thereafter kept on directing the Political Agent North Waziristan Agency for appropriate action, but without success, hence this petition.

2. The Political Agent/respondent No.3 in his written comments submitted that according to jirga report, the documents in possession of/ Ibrahim‑respondent were genuine and those of‑Mehr Dil Khan‑ petitioner declared as suspicious and stated that being FATA area, all disputes prevailing in their jurisdiction are decided under the F. C.R/Riwaj. Similar in the reply of A.P.A./respondent No.2 counsel for respondent No. 1 at the very outset objected to the maintainability of the writ petition under Article 247,1 sub‑clause (7) of the Constitution of Islamic Republic of Pakistan, 1973; This Court lacks jurisdiction in the matter. That ‑it involves factual ' controversy which cannot be settled in writ jurisdiction. That the petitioner had the remedy to file an appeal under section 48 of the F.C.R. or Revision under section 55‑A thereof, and the petition in hand does not lie under the law.

4. On factual side he denied the sale transaction with petitioner and agreement deed as well by advancing that respondent No.1 in fact had sold the car to Jehandad (driver) who without satisfying the entire sale consideration sold the same to one Arifullah Khan, that respondent No. 1 was therefore, in search of his motorcar and finding it in the Tribal Area took the same into his possession and brought the matter into the notice of his elders of the locality. That Jirga was constituted who had declared respondent No. 1 as bona fide owner of the said motorcar. The petitioner participated in the proceedings of the Jirga and could not rove his title.

5. The learned Deputy Attorney General also supported the arguments of the respondent No. 1 by adding that the dispute was settled by the Jirga of Transporters appointed by the Political Authorities and as a result of which, claim of the petitioner proved false and fabricated. That on the complaint of the petitioner before the Judicial Magistrate under sections 381‑A/419/420, P.P.C., it was finally declared that the dispute pertains to Tribal Area, so it cannot be entertained.

6. We have gone through the record and given patient hearing to the learned counsel for the parties. Before touching merits of the case, we would like to discuss the objection as to the maintainability of the writ petition as raised by the counsel for the respondents. It is not denying the fact that the car in question is registered in settled area, agreement of sale with whosoever taken place at settled area and the car also played and allowed as taxi in the settled area. It also appears from the record that it was brought to Mir Ali, North Waziristan Agency from Serai Naurang, District Lakki Marwat, correspondence, criminal complaints, applications to Commissioner Bannu B etc. all in chain disclose one and same story and there is no single departure from day one that the sale transaction of the car in question, agreement of sale and the purchase of stamp papers for agreement all above pertains to' District Lakki Marwat, which factors are not looked into by the Political Authorities. In the above circumstances or the case, it is a fit case to be interfered with.

7. Conversely, it is, however, very irksome to notice that the Political Authorities shut their eyes, avoid actions against the hardened criminals and culprits being fully known to them. They instead of crushing and curbing the criminal elements, rather encourage, protect and harbour them as is very clearly evident from record of this case, which the respondent No. 1 admits in his written statement that he has sold the car allegedly to the driver Jehandad and because of non‑payment of full sale consideration, hg had snatched the same illegally. This alone confession on the part of respondent No. 1 warranted action by the Political Authorities as nobody can he allowed to take the law in his hands and settle the score of his own.

8. The Political Authorities are duty bound and assigned with sacred duty to stremline the law, and order situation with their domain and to maintain the rule of law. In this case, the Commissioner Bannu repeatedly directed the Political Authorities to return the car to the petitioner but they did not bother to comply the orders of their superior, rather flouted and by passed the same. It will not be out of place to mention at this juncture that when some person is wanted by the Political Authorities, the administration of settled area without any hesitation fully cooperate in order to check and hunt down the law‑breaker. On contrary, the Political Authorities give protection and shelter to such‑like criminal elements.

9. As equal to above discussion, we accept this writ petition and direct respondents Nos.2 and 3 to return the car in question forthwith to the petitioner on Superdari on his furnishing security bond of Rs. two lacs and adjudicate upon the matter in question justifiably and fairly according to law, as no body is above board. Since apparently it appears from the record and C documents placed with this petition that the said car is plyed and allowed permit as taxi in settled area, sale transaction with whomsoever also taken place within the settled area with respondent No. 1, the petitioner may file criminal complaint against', respondent No. 1 in the competent Court of jurisdiction, if he so desires. H.B.T./447/P Petition accepted.