P L D 2004 Supreme Court 907 (PLP)

JAVED IQBAL, J.

This appeal with leave of the Court is directed against the judgment dated 23-9-1998 passed by learned Division Bench of the Peshawar High Court. Peshawar, whereby the writ petition preferred on behalf of appellant has been dismissed.

2. Leave to appeal was granted by means of order dated 16-7-1999 which is reproduced herein below to appreciate the legal and factual aspects of the controversy:-- "Petitioner seeks lave to appeal against the judgment of a learned Division Bench of the High Court dated 23-9-1998, whereby, the writ petition filed by the petitioner, was dismissed."

2. Mir Zaman respondent No.3 moved a complaint under section 8 of the Frontier Crimes Regulation before the Assistant Political Agent respondent No.2, on the allegation that the petitioner owed him Rs.1,89,000 on account of the outstanding sale consideration in respect of the sale of a motor car purchased by the petitioner for him through sale-deed dated 6-2-1987. Respondent No.2 took cognizance of the dispute and issued process against the petitioner. The petitioner filed writ petition challenging the competency of respondent No.2 to take cognizance of the matter which was dismissed through the impugned order. We heard the learned counsel appearing for the petitioner and studied the available record.

3. Leave is granted to consider in detail the following points which arise in the case. (a) Whether jurisdiction of the High Court in the case was barred under section 247(7) of the Constitution? (b) Whether in view of the allegations made in Writ Petition respondent No.2 or for that matter respondent No.3 could take cognizance of the dispute between the parties? (c) Whether the provisions of section 8 of the Frontier Crimes Regulation applied to the dispute between the parties? Further proceedings before respondent No.2 should remain suspended till the decision of the appeal. However, as the matter relates to the interpretation of the provisions of Frontier Crimes Regulation and jurisdiction of the officer functioning under it which is of important nature and would require earlier disposal. therefore, the appeal should be fixed for hearing in this year."

3. Heard Barrister Masud Kausar, learned Advocate Supreme Court on behalf of appellant, Mr. Imtiaz Ali, Additional Advocate-General, N.-W.F.P. for respondents Nos. 1 and 2, and Mir Zaman respondent No.3 in person at length, perused the entire record with their eminent assistance and examined the judgment impugned.

4. After having gone through the entire record we are of the considered opinion that the question as to what should be the import and significance of Article 247(7) of the Constitution of Islamic Republic of Pakistan is not the real question to be determined, as pressed time and again by the learned counsel on behalf of appellant because the entire controversy revolves around the assumption of jurisdiction by the Political Agent under section 8 of the Frontier Crimes Regulation, 1901. A careful scrutiny of the entire record would reveal that appellant himself had approached the Assistant Political Agent and Jirga was constituted after having his consent but the matter could not be resolved due to the absence of Members of Jirga. The appellant thereafter filed a civil suit on 1-2-1989 at Kohat which was rejected and revison filed by the appellant also met the same fate. The appellant had accepted the above mentioned verdict and appeared before the Jirga but the controversy could not be set at naught and after having the consent of the parties another Jirga was constituted on 26-10-1989. The appellant approached the Peshawar High Court, Peshawar, by means of writ petition with the prayer that proceedings before Jirga may be stayed but amazingly this writ petition was withdrawn on 21-5-1990. The case was subsequently referred on four different occasions to the Council of Elders which was again challenged by the appellant by preferring the writ petition and resultantly the proceedings were suspended on 5-3-1991. The writ petition was, however, ultimately dismissed by means of order dated 23-9-1998. We are not persuaded to agree with learned Advocate Supreme Court on behalf of appellant that cognizance of the matter could not have been taken under section 8 of the Frontier Crimes Regulation, 1901 for the reasons that applicant was permanent resident of Kohat because it transpired from the scrutiny of record that appellant is also resident of Tor Chapper, Sarwar Khel, F.R. Kohat, which is admittedly a part of tribal area. It is also an admitted feature of the case that respondent also belongs to tribal area. In such view of the matter the learned Political Agent had rightly assumed the jurisdiction under section 8 of the Frontier Crimes Regulation, 1901, which inter alia provides that "where the Deputy Commissioner is satisfied, from a police report or other information, that a dispute exists which is likely to cause a blood-feud, or murder, or culpable homicide not amounting to murder, or mischief, or a breach of the peace, or in which either or any of the parties belongs to a frontier tribe, he may, if he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the consequences anticipated, and if a suit is not pending in respect of the dispute, make an order in writing, stating the grounds of his being so satisfied, referring the dispute to a Council of Elders, and requiring the Council to come to a finding on the matters in dispute after making such inquiry as may be necessary and after hearing the parties".

5. We are conscious of the fact that jurisdiction cannot be assumed by any forum merely on the consent of the parties which is to be conferred upon in a categoric manner by some statute or enactment. It is, however not understandable that why the writ petition filed earlier before the High Court by the appellant was withdrawn who thereafter surrendered to the jurisdiction of Political Agent as conferred upon him under section, 8 of the Frontier Crimes Regulation, 1901. It does not depend upon the whims and wishes of the petitioner to select the forum of his own choice. The chequered history of the case as mentioned herein above is demonstrative of the fact that every possible effort has been made to frustrate the proceedings pending adjudication before the forum concerned. Insofar as interpretation of Article 247(7) of the Constitution of Islamic Republic of Pakistan is concerned that has been made on different occasions by this Court which may further be examined in appropriate case if felt necessary. No jurisdictional flaw, illegality, perversity or infirmity could be pointed out warranting interference in the judgment impugned being well based. The appeal being devoid of merit is dismissed. There shall be, however, no order as to costs. M.H./I-95/S Appeal dismissed.