1992 PLP 2043 (MLD)

(c) Running Gambling dens; (d) Any other recommendation the Jirga deemed fit to make.

2. The learned counsel for the petitioner vehemently contended that the proceedings of the Jirga were conducted at Kohat and the order was passed by respondent No.1 at Kohat and the petition for revision was heard and decided by respondent No.3 at Kohat within the territorial jurisdiction of this Court and further the petitioner is also confined at Haripur within the territorial jurisdiction of this Court and, therefore, this Court has the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 of the judicial review of the orders of respondents Nos.1 and 3 and has jurisdiction to pass orders on the propriety and legality of the orders. The learned counsel conceded that the petitioner is resident of Federally Administered Tribal Areas and the offences relate and have occurred in the tribal area and Frontier Crimes Regulation, 1900 is the law applied, enforced and in operation in the tribal areas.

3. The Federally Administered Tribal Areas is one of the territories as mentioned and declared under Article 1(c) of the Constitution of Islamic Republic of Pakistan, 1973. The Province has territories of Pakistan, each have a High Court and other Courts as established by law under Article 175 of the Constitution, 1973 but the Federally Administered Tribal Area's have neither a High Court nor such other Courts established by law in the Province. Tribal areas as described in Part XII, Chapter 3 of the Constitution, 1973 are administered under Article 247 of the Constitution and Regulations are made for the peace and good government of Federally Administered Tribal Areas or any part thereof and the laws are extended by the President of Pakistan to the Federally Administered Tribal Areas subject to such exception and modification as specified in the direction of application of the law to the tribal areas. The Supreme Court of Pakistan and a High Court of a Province are restrained to exercise any jurisdiction under the Constitution in relation to a tribal area under Article 247(7) of the Constitution which provision is as under:‑ "

247. Administration of Tribal Areas: ‑‑(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."

4. The President of Pakistan and Governor of N.‑W.F.P. as an agent Of the President "administer" Federally Administered Tribal Areas and by virtue of powers such invested under the Constitution, orders are passed by the President of Pakistan or officer subordinate to the President of Pakistan ad Islamabad and the Governor of North‑West Frontier Province and officer subordinate to the Governor at Peshawar and for that matter any other place in the Province or , in the Federation of Pakistan by the administering authorities. The Constitution as such debars the jurisdiction of the Supreme Court of Pakistan and a High Court of a Province from exercise of any jurisdiction under the Constitution in relation to a Tribal Area. In other word if the President, Governor or officers subordinate to them pass orders in relation to tribal areas within the jurisdiction of the Supreme Court of Pakistan or jurisdiction of a High Court of a Province then no jurisdiction can be exercised by the Supreme Court of Pakistan or a High Court of a Province and will not judicially review such orders under Article 199 of the Constitution on the sole ground that the orders have been passed by the President, Governor or an officer subordinate to them sitting within the territorial jurisdiction of a High Court of a province. An Officer or an authority exercising jurisdiction within the territorial jurisdiction of a High Court but in relation to person and territorial area outside the jurisdiction of a High Court came under scrutiny of the Privy Council in the Report AIR (30)1943 Privy Council 164, Ryots of Garabandho and other villagers v. Zamindar of Parlakimedi and another. After referring to the jurisdiction of Saddar Dewani Adalat and Saddar Nizamat Adalat and the jurisdiction of Madras High Court, the rule was laid down as under:‑‑ "It is necessary now to consider the question whether jurisdiction to issue certiorari in such a case as the present accrued to the High Court or Would have accrued to the Supreme Court by virtue of the fact that the location of the Board of Revenue is within the Presidency Town. The Town of Madras has, since 1726, been considered to be governed by the principles of English law though not all the provisions of that law have been received as applicable to the circumstances of the country; and the British statutes passed specially extended to India. The Board of Revenue, as already noticed, was established in 1786 and at various times discharged different functions some of them judicial in character. See Madras Regulation 1 of 1808 and Regulation 2 of 1806. By Regulation 5 of 1804 it became a Court of Wards for the Presidency. Under Regulation 7 of 1817 it had for many years control over religious and other endowments. Their Lordships will not assume that in 1800 it would have been regarded as a Court. For the purposes of the present case, it may here be said also that in giving directions under section 172, Madras Estates Land Act, 1908, ‑the Board of Revenue is to be considered not as a Court, or as the highest Court in a hierarchy of Revenue Courts, but as an official body especially entrusted with particular duties which include duties of a judicial character. 63 M.L.J. 450 and 56 Mad. 579, show that this view is in accordance with the opinion of the High Court. The Board of Revenue has always had its offices in the Presidency Town, and in the present case the Collective Board, which made the order complained of, issued this order in the town. On the other hand, the parties are not subject to the original jurisdiction of the High Court and the estate of Parlakimedi lies in the north of the province. On the present question their Lordships lay no stress upon any negative implication derivable from clause 47 of the charter which authorised the Supreme Court to issue writs of mandamus, certiorari, etc. to the justices and other Magistrates of the town and to the two Courts therein mentioned, the Court of Request and the Court of Quarter Sessions. The terms of this clause made it difficult to think that Courts other than those mentioned were intended ti) be regarded as inferior Courts for this purpose. The case in 46 I.A.176, is an authority of this Board that the ' power to issue certiorari still remains in the High Courts of Calcutta, Madras and Bombay in the exercise of their local jurisdiction. On this point it confirmed the decision in 11 Cal. 275, where certiorari was issued to bring up and quash an assessment made by the Commissioners of the town of Calcutta upon a certain dwelling house, it being held that the error in the assessment was an error which went to jurisdiction. The question is whether the principle of that case can be applied in the present case to the settlement of rent for land in Ganjam merely upon the basis of the location of the Board of Revenue, as a body which is ordinarily resident or located within the town of Madras, or on the basis that the order complained of was made within the town. If so it would seem to follow that the jurisdiction of the High Court would be avoided by the removal of the Board of Revenue beyond the outskirts of the town, and that it would never attach but for the circumstances that an appeal is brought to or proceedings in revision taken by, the Board of Revenue. Their Lordships think that the question of jurisdiction must be regarded as one of substance, and that it would not have been within the competence of the Supreme Court to claim jurisdiction over such matter as the present by issuing certiorari to the Board of Revenue on the strength of its location in the town. Such a view would give jurisdiction to the Supreme Court, in the matter of the settlement of rents for ryoti holdings in Ganjam between parties not otherwise subject to its jurisdiction, which it would not have had over the Revenue Officer who dealt with the matter at first instance." The Supreme Court of Pakistan in the Report PLD 1974 Supreme Court 109, Abdul Rahim and others v. Home Secretary, Government of West Pakistan and another also rules as under:‑ "It would be useful to refer to the provisions of clause (5) of Article 223 of the 1962 Constitution, it reads: (5) Notwithstanding anything in this Constitution, neither the Supreme Court nor a High Court shall, unless the Central Legislature by law otherwise provides, exercise any jurisdiction under this Constitution in relation to a Tribal Area. This clause was inserted by First Amendment, 1963 (Act I of 1964). The first thing to be noticed is the non‑obstante clause in the beginning of the above Constitutional provision, which gives it an overriding effect over other provisions of the Constitution including that relating to the writ jurisdiction of the High Court. The prohibition is against the exercise of jurisdiction "in relation to a Tribal Area". This is not an expression of art like the expression `cause of action', which has a well‑defined meaning and therefore, has a limited import. The words `in relation to' on the other hand are of wide import and postulate of a connection of one thing with another: a nexus. The question therefore is whether there is such a connection or nexus between the subject‑matter of the dispute and the former State of Chitral. In this context the situs of the land and the residence of the two sets of claimants become decisive. The location of the land in dispute and the residence of the parties plainly established this nexus or relationship for the relevant purpose. Besides, in the instant case, all material actions were taken in the tribal territory on the basis of the local custom having the force of law where the land in dispute is also situate. The mere fact that the final order sought to be challenged in this case was that of the Home Secretary, West Pakistan, dated the 23rd July, 1964 would not snap the relationship of the dispute with the former State of Chitral, and bring the matter within writ jurisdiction of the High Court. On this aspect of the question, the law was laid down by the Privy Council as far back as 1943 in Ryots of Garabandino and others v. Zamindar of Parlakimedi and another (1) wherein it was held that the Madras High Court, which exercised its local jurisdiction within the Presidency town of Madras, had no power to issue writ of certiorari in respect of proceedings for setting fair and equitable rent under a local law, by the special officer of District of Ganjam, although the final order sought to be challenged was made in revision by the Collective Board of Revenue, sitting in Madras. This case is an authority for the view that the seat of the authority at the apex cannot be a decisive for the relevant purpose. The matter has to be looked into from the point of view of its substance and not its mere form. Any other view will be a circumvention of an express prohibition in the Constitution."

5. It is apparent from the Constitution and the law laid down by the supreme Court of Pakistan and the Privy Council that a High Court of province shall not exercise jurisdiction in relation to a tribal area even if the officer exercising jurisdiction in relation to the tribal area, exercised the jurisdiction within a territorial jurisdiction of a High Court. The jurisdiction is in word which may be used with either a wider or a narrower connotation and it will be in the narrower connotation when it is in relation to tribal area. The High Court of a Province under its own territorial jurisdiction can issue directions under Article 199 of the Constitution to functionaries performing functions and exercising jurisdiction in connection with affairs of the Federation, Province or local authority in the; and in relation to, the Province.

6. The President and the Federation and the Governor N.‑W.F.P. and the Province have offices, officers and functionaries at Islamabad and other places and throughout the Province of North‑West Frontier, performing functions and exercising jurisdiction in relation to Federally Administered Tribal Areas. For example `saffron' office is situate at Islamabad who perform functions also in connection and in relation to Federally Administered Tribal Areas. The Commissioner, Peshawar Division having office at Peshawar also performs functions in relation to Mohmand Agency, Khyber Agency which are Federally Administered Tribal Areas. As also offices‑of the departments like Education, Health, Engeering, Agriculture, Development etc. are either situated in the Secretariat at Peshawar or other places of the Province, where even the officers of the Province, perform functions, pass orders and exercise jurisdiction in relation to Federally Administered Tribal Areas. .Even the Governor, N.‑W.F.P. as an agent of the President holds office at Peshawar and passes orders etc. in relation to Federally Administered Tribal Areas. All these functions, orders passed and jurisdiction exercised within the territorial jurisdiction of this Court will not be amenable to judicial review by this Court under Article 199 of the Constitution due to the bar for exercise of jurisdiction under Article 247(7) of the Constitution and the above‑mentioned rule laid down by the Supreme Court of Pakistan and the Privy Council.

7. It is common knowledge that Federally Administered Tribal Areas have no regular established Prisons in the area. It is also a fact that the Political Agents and other officers of Federally Administered Tribal Areas have offices and perform functions in relation to the areas within the territorial jurisdiction of this Court. In the instant case the Jirga was held at Kohat anti the petitioner was convicted and sentenced at Kohat but this Court will not exercise jurisdiction under Article 199 of the Constitution and review th4. proceedings, conviction and sentences of the petitioner for the sole reason that the petitioner is confined and proceedings undertaken, conviction anti. sentences have been passed within the territorial jurisdiction of this Court. Thu. petitioner is, confined in the Central Prison Haripur on the basis of the warrant issued by an officer of Federally Administered Tribal. Areas on the lave.' applicable in the area and for that reason also this Court will not assume jurisdiction in the matter. The instant writ petition is dismissed in limine along CM No. 1834 of 1991. M.BA./1385/P Petition dismissed.