P L D 1980 Peshawar 79 (PLP)

ABDUL HAKEEM KHAN, C. J.-Haji Hakim Khan has moved this constitu tional petition for a declaration that the order, dated 26-1-1977, of the Deputy Secretary (Home) (respondent No. 2), whereby Revision moved by Haji Amirzada (respondent No. 4) was accepted is without lawful authority and of no legal effect inasmuch as it was violative of section 7(2) of the Provincially Administered Tribal Areas (Application of Laws) Regulation, 1973 and that respondent No. 2 was not competent to hear the Revision.

2. It may be elaborated that by the impugned order of the Deputy Secretary (Home) in the Revision which was moved by Haji Amirzada Khan (respondent No. 4), the order, dated 6-2-1976 of the Lawyer Magistrate (respondent No. 3) requiring the petitioner and Haji Amirzada Khan on one side and Haji Amirzada Khan (respondent No. 4) on the other side, to execute a bond for keeping peace in the sum of rupees one lac for the period of two years, under section 17(1) of the Provincially Administered Tribal Arees Criminal Law (Special Provisions) Regulation, 1975, or in default to suffer two years S.I which had been reversed in appeal by the Commissioner, was restored.

3. The grievance of the petitioner is that (respondent No. 4 had been found guilty of murder of Mohibullah Khan, a brother of the petitioner and was sentenced to 14 years' R. I. and furthermore, he was declared Dushman and for that reason it was impermissible for him to enter the area of Bat Khela, vide order, dated 16-6-1949 of the then Political Agent, Malakand. The petitioner asserts that he has a right to kill respondent No. 4 if he is to enter Bat Khela area for this was the liability which the respondent had incurred after that he had been declared Dushman and restrained from entry to Bat Khela.

4. The learned counsel for the petitioner contended that section 24 of the' Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation, 1975 gave the power of Revision to the Government and this power the Deputy Secretary (Home) could not exercise. This objection was promptly, and we should say rightly as well, withdrawn by the learned counsel for the petitioner when he was shown the Notification No. K. C. 3-21/71-S. O. (Judi.) of the Government of N: W. F. P: Home and Tribal Affairs, dated 4th of March, 1976 which reads:- "In exercise of the powers conferred by Article 139 of the Constitution of the Islamic Republic of Pakistan, read with rule 4 of the North-West Frontier Province Government Rules of Business, 1972, the Govern ment of the North-West Frontier Province are pleased to authorise and empower Mr. Mohammad Zulfiqar Khan, Deputy Secretary, Home and Tribal Affairs Department with effect from the date of publication of this notification, to hear and dispose of Revision petitions under section 24 of the Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation, 1975 (N.-W. F. P. Regulation I of 1975)."

5. The second ground on which the order of the Deputy Secretary (Home) respondent No. 2 is being attacked is that the sentence of Haji Amirzada Khan in 1949 and his declaration as Dushman was under Custo mary Law and the liability' which the declaration as Dushman entails will continue and, therefore, the provisions of section 17 of the Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation, 1975 were not applicable. In support of his arguments, the learned counsel invited our attention to section 4 of the General Clauses Act and section 7(2) of the Provincially Administered Tribal Areas (Application of Laws) Regulation, 1974, wherein previous operation of the repealed laws/customs and usage have been saved. This argument, though attractive at the first sight, overlooks that the all important question that the new law, namely Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation, 1975, is self-contained code of procedure in those areas and inter alia provides for security for keeping the peace and again the extension of the Pakistan Penal Code and the Code of Criminal Procedure to the area would make the killing of a Dushman an offence, within the cognizance of the Criminal Courts. Crucial point is as to when such killing is going to take place. If it had taken place already before the extension aforementioned law then it could have been argued that this was a liability which the killed man had already incurrei under the Custom. In the case of killing after the enforcement of these Law such an argument will not be available for there is nothing in the Laws that are now in force, which will permit the killing of a Dushman by a private person.

6. In the circumstances it appears to us that the learned Magistrate was justified in requiring security for keeping peace from both the sides and the order passed by him has been rightly restored by the Deputy Secretary) (Home).

7. On the view of the matter that we take, we find no force in this petition and dismiss it, without making any order as to costs. S. A. H. Petition dismissed.