2012 PLP 503 (MLD)

FAZAL-E-HAQ ABBASI, J.

Haji Abdul Sami son of Abdul Aziz moved a written application to S.H.O. Police Station Hayat Abad regarding abduction of Muhammad Saad, his son against unknown person/persons. As such case F.I.R. No.241 dated 27-3-2007 under section 365, P.P.C. was registered at Police Station Hayat Abad Peshawar.

2. On 25-4-2007 Political Tehsildar Jamrud, Khyber Agency, on an information raided the House of Maulvi Muhammad Bashir, wherefrom Muhammad Saad abductee was recovered and accused Maulvi Muhammad Bashir, his son Zamin Gul and one Munawar Khan were arrested from the House. Statement of Muhammad Saad, abductee was recorded, who narrated the whole occurrence and charged the aforesaid persons along with three others for his abduction, illegal confinement in different places and torture.

3. After completion of the investigation the case under sec-tions 365/400/401/411, P.P.C. read with section 11 of the Frontier Crimes Regulation 1901 was submitted in the Court of Assistant Political Agent/ADM Tehsil Jamrud Khyber Agency. The learned APA/ADM Tehsil Jamrud framed issues in the order of reference and sent the same under section 11 of the FCR to Council of Elders for Award. The Jirga Members were unanimous regarding the guilt of the accused. In the light of the unanimous Award, learned Assistant Political Agent/ADM Tehsil Jamrud Khyber Agency through his judgment dated 10-9-2008 convicted and sentenced the accused facing trial under section 365, P.P.C. read with section 11 FCR to undergo 5 years R.I. with a fine of Rs.100,000 or in default of payment of fine further to suffer one year S.I. each. The accused were further convicted and, sentenced under section 400, P.P.C. read with section 11 FCR to undergo 7 years R.I. with a fine of Rs.200,000 or in default of payment of fine to undergo 2 years' S.I. each. The sentences were ordered to run consecutively with benefit of section 382-B, Cr.P.C.

4. Instead of challenging the conviction and sentence before the appellate forum Writ Petition No.1923 of 2008 was filed against the judgment dated 10-9-2008 passed by APA Jamrud. Through judgment dated 4-11-2009 a Division Bench of this Court held that the aforesaid writ petition was not maintainable and has been filed under misconception, therefore, instead of returning the same, it was sent to the Commissioner FCR to decide the same in accordance with law and to consider the jurisdiction of the APA.

5. Commissioner FCR Peshawar Division Peshawar treated Writ Petition No.1923 of 2009 sent to him by the Peshawar High Court vide order dated 4-11-2009, as Appeal under section 48 of FCR 1901. However, the appeal was dismissed vide order dated 6-5-2010.

6. Munawar Khan then filed Revision Petition No.49 of 2009 before the Tribunal FCR Peshawar. However, the same was also dismissed vide judgment dated 16-10-2010.

7. Challan was also submitted in the Court of Tasawar Hussain Judicial Magistrate Peshawar in case F.I.R. No.241 dated 27-3-2007 under section 365, P.P.C. Police Station Hayat Abad Peshawar, against the same set of accused i.e. Munawar Khan etc. The learned Judicial Magistrate-V Peshawar through his judgment dated 8-1-2011 convicted Munawar, Zamin Gul and Maulvi Bashir under section 365, P.P.C. and all of them were sentenced to imprisonment for 3 years each, with benefit of section 382-B, Cr.P.C.

8. Munawar Khan filed Writ Petition No.632 of 2011 wherein he challenged all the judgments of FCR hierarchy as well as the judgment dated 8-1-2011 of learned Judicial Magistrate-V Peshawar on the grounds of double jeopardy and jurisdiction.

9. Learned counsel for the petitioner argued that as the case was registered at Police Station Hayat Abad Peshawar and according to the F.I.R. Muhammad Saad was abducted from the settled area, therefore, the Assistant Political Agent had no jurisdiction to try and convict the accused. He further argued that no person shall be prosecuted or punished for the same offence more than once, as such he prayed that all the judgments under FCR as well as, by the Judicial Magistrate Peshawar, be set aside and the petitioner be acquitted of the charge.

10. Learned counsel appearing on behalf of the State, however, opposed the writ petition.

11. Arguments heard and file perused.

12. As far as the first, arguments of the learned counsel for the petitioner is concerned, it is provided under section 180, Cr. P. C. that:-- "When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first mentioned offence may be inquired into or tried by a Court within the local limits of whose jurisdiction either act was done." Illustrations. (a)

(b)

(c) A charge of wrongfully concealing a person known to have been kidnapped may be inquired into or tried by the Court within the local limits of whose jurisdiction the wrongful concealing, or by the Court within the local limits of whose jurisdiction the kidnapping, took place"

13. It is clear from the aforesaid provisions that when Muhammad Saad was abducted from the jurisdiction of Police Station Hayat Abad Peshawar and was recovered from a place situated in Tribal Area falling within the jurisdiction of APA Khyber Agency, both Assis-tant Political Agent Jamrud, Khyber Agency and the Judicial Magistrate Police Station Hayat Abad had the jurisdiction to try the accused.

14. As far as next argument regarding double jeopardy is concerned it is clearly provided under Article 13 of the Constitution of the Islamic Republic of Pakistan that:-- "No person shall be prosecuted or punished for the same offence more than once". Similarly under section 403, Cr.P.C. it has been provided that:-- "A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force no to be liable to be tried again for the same offence

"

15. As consequence of the above, we hold that the subsequent trial of Murawar Khan etc. by Judicial Magistrate-V Peshawar and his judgment dated 8-1-2011 are violative of Article 13 of the Constitution of the Islamic Republic of Pakistan as well as section 403, Cr.P.C. as such of no legal consequence.

16. Now coming to the prayer of Munawar Khan regarding setting aside of the judgments of APA, Commissioner and Tribunal FCR and his acquittal is concerned, this writ petition is not maintainable, because under Article 247(7) of the Constitution of the Islamic Republic of Pakistan, 1973 it has been provided that:-- "Neither the Supreme Court nor a High Court shall exercise jurisdiction under the Constitution in relation to Tribal Area unless Majlis-e-Shoora (Parliament) by law otherwise pro-vides"

17. As the matter relates to Tribal Area, as such this Court has got no jurisdiction as stated above. Consequently this writ petition is dismissed. H.B.T./271/P Petition dismissed.