P L D 2004 Peshawar 207 (PLP)

MALIK HAMID SAEED, J.

Abdul Aziz, petitioner, faced an inquiry before Mr. Muhammad Arshad Khan, Judicial Magistrate, Peshawar, in consequence of a non-bailable warrant of arrest issued against him by the APA Bara, Khyber Agency, for appearance in his Court on the complaint of Haji Noor Wali, a tribal man, wherein the charges of committing the offences under section 419/420, P.P.C read with section 11 of the Frontier Crimes Regulation were levelled against it the petitioners.

2. In the first instance relief to the petitioner was granted by this Court in W.P. No.1001/2004 on 28-1-2004 with direction to the Superintendent Central Jail, Peshawar not to shift or allow to be removed the petitioner from Jail to the Tribal Territory pursuant to warrant of arrest issued by Political Authorities unless the petitioner is produced before the Court of Judicial Magistrate and who undertakes the exercise as provided under section 86-A, Cr.P.C.

3. Accordingly, the Magistrate proceeded, in the matter under section 86-A, Cr.P.C, and vide impugned order dated 11-5-2004 ordered the removal in custody of the petitioner to APA/ADM, Bara, Khyber A Agency, as a strong prima facie case existed against the accused with the probable presumption that the accused has committed the fraud in question.

4. The question that the matter between the parties being purely of a civil nature was not required to be criminally proceeded against the petitioner has been raised by the learned counsel for the petitioner during the course of arguments, but in our view the question of jurisdiction of this Court is also involved besides.

5. The facts which can be gathered from the documents available on the file of this case are that the respondent Haji Noor Wali has submitted a complaint against the petitioner before the APA, Bara, Khyber Agency with the allegations that he being running cloth business at Khyber Agency often visits Dubai where he met with Abdul Aziz and thus made purchases from him several times. However, it was on 14-8-2001 when Abdul Aziz came to Pakistan and met with him in the Khyber Agency. He told the complainant that nowadays the rates of cloth are very cheap in Dubai. The complainant thus handed over an amount of Rs.8,20,000,00 to Abdul Aziz but he did not send the needed cloth to him and disappeared from Pakistan. Therefore he has cheated and induced dishonestly the complainant by grabbing a huge amount from him. A warrant was therefore issued against the petitioner by the APA, Bara Khyber Agency against which the petitioner filed Writ Petition No.1001/2004 in this Court, but as the petitioner was already in jail, therefore, this Court directed the Superintendent Central Jail, Peshawar not to shift or remove the petitioner from jail unless inquiry against the petitioner as required under section 86-A, Cr.P.C. is completed by the Court of Judicial Magistrate. The inquiry so conducted by the Judicial Magistrate resulted into the impugned order of removal in custody of the petitioner for his production before the APA, Bara at Khyber Agency It is also admitted in the writ petition that after the impugned order, the petitioner has already been shifted to the tribal territory i.e. Khyber Agency.

6. Section 86-A, Cr.P.C. provides that, "Where a person arrested under section 85 is to be removed in custody to any place in the Tribal Areas, he shall be produced before a Magistrate within the local limits of whose jurisdiction the arrest was made, and such Magistrate in directing the removal shall hear the case in the same manner and have the same jurisdiction and powers, as nearly as may be, including the power to order the production of evidence, as if the person arrested were charged with an offence committed within the jurisdiction of such Magistrate: and such Magistrate shall direct the removal of the arrested person in custody if he is satisfied that the evidence produced before him raises a strong or probable presumption that the person arrested committed the, offence mentioned in the warrant" The aforementioned section is self explanatory, as the "satisfaction" of the Magistrate does not mean his private satisfaction but a satisfaction based on evidence produced before in raising a strong or probable presumption that the person arrested has committed the offence mentioned in the warrant. Let us see as to how the Magistrate has concentrated his mind and is his decision based on the evidence produced before him or no reasons have been given to show whether the Magistrate has gone wrong on the law or the facts. The complainant has recorded his statement before the Magistrate on oath wherein he has fully detailed the events which led to his deprivation of a huge amount by the cheating acts of the petitioner. Two other persons namely Mamor Khan and Wali Khan also recorded their statements on oath wherein they posed themselves to be the witnesses of taking the alleged money from the complainant on the pretext of sending cloth by the accused from Dubai. On the other hand, the petitioner did not produce any witness in his defence and only recorded his own statement wherein he treated the complaint of Haji Noor Wali as mala fide, but in cross-examination admitted to have got education at Dubai right from his childhood, that he has different types of business and that he has obtained six passports i.e. from Peshawar, Pakistan Embassy at Abu Dhabi. Parachinar, Kohat etc. He has also admitted his photograph on his passport issued to him from Afghanistan but stated that only his photo has been pasted on it but- it has not been issued in his name. Similarly he admitted his photograph on the passport issued in the name of Fatehullah of Mohmand Agency. He also showed his inability to produce documents with regard to his business at Dubai. The petitioner in his statement stated that he runs the business of construction and that Haji Noor Wali was his partner in the said business at Dubai but showed his inability to produce any documentary evidence in this regard. In view of the aforesaid evidence on either side, the learned Magistrate has properly discussed the same in his judgment and has given sound reasons showing his satisfaction that the evidence produced before him raises a strong or probable presumption that the person arrested committed the offence mentioned in the warrant. In our view, the conclusion drawn by the learned Magistrate in the circumstances of the case is reasonable as the respondent Haji Noor Wali has successfully established the factum of dishonestly capturing his amount by the petitioner whereas the petitioner could not bring on record anything to show that the complaint of Haji Noor Wali was based merely for enforcement of a civil liability disclosing no criminal offence on his part.

7. It is well-established that before a High Court proceeds to exercise jurisdiction under Article 199 of the Constitution in respect of a case pending before, or decided by a Magistrate, it has to demonstrate by giving reasons that the relevant provisions of the Code do not provide adequate remedy to the applicant in the matter. Section 439-A of the Criminal Procedure Code provides that, "In the case of any proceedings before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions judge may exercise any of the powers conferred on the High Court by section 439." The order impugned in this writ petition was thus a revisable order and the adequate remedy by way of filing a revision petition before the Sessions Judge was therefore available to the petitioner. Ultimately an appeal to the august Supreme Court of Pakistan could also be pursued by him.

8. The observations of the august Supreme Court of Pakistan in the case of Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142 are so comprehensive and substantial that it is worth to reproduce here as under:- "The power under Article 199 of the Constitution is the power of judicial review. The power is a great weapon in the hands of judges, but the judges must observe the Constitutional limits set by the parliamentary system on their exercise of this beneficial powers, namely, the separation of powers between the parliament, the Executive and the, Court. Judicial review, must, therefore, remain strictly judicial and in its exercise, judges must take care not to intrude upon the domain of the other branches of Government." The aforesaid view is quite in accordance with the earlier succinct view of the august Supreme Court of Pakistan put by Hamoodur Rehman, J. (as he then was) in Mir Abdul Baqi Baluch v. The Government of Pakistan PLD 1968 SC 313, 324 which is to the effect:-- "It is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency." This, we should think, if trite law. Viewed in this light, the judgments of the learned Judges in the High Court appear to us to be instances of that judicial restraint which is so essential 'to the continuance of the rule of law', for the continued public confidence in the political impartiality of the judiciary' and the voluntary respect for the law as laid down and applied by the Courts. " As sufficient direct case law on the point agitated in this writ petition is not available except certain judgments, most of which have been delivered by this Court due to contiguity of various tribal agencies with the boundaries of this Province, therefore, the learned counsel for the petitioner during the course of arguments strongly relied upon two judgments of this Court which have already been published in the law journals. First is the case of Zareef Khan reported in PLD 1995 Peshawar 118, which itself supports our view on the question of adequate remedy as Zareef Khan and his father were produced before a Magistrate in consequence of a non-bailable warrant of arrest issued by the Political Agent Khyber Agency on the complaint of the respondent/tribal man with regard to a dispute over the payment of money. The Magistrate at the close of proceeding under section 86-A, Cr.P.C took the view that the allegations brought about in the complaint did not constitute an offence and considering the dispute to be of civil nature, the learned Magistrate released Zareef Khan and refused to send him in custody to the tribal area. The order was challenged in revision before the learned Sessions Judge, Peshawar, who was of the view that a prima facie case existed against the accused and thus it was incumbent upon the Magistrate to have sent the accused in custody to the Political Authorities of Khyber Agency. Aggrieved of the aforesaid acceptance of the revision petition by the learned Sessions Judge, Zareef Khan filed a petition under section 561-A, Cr.P.C before this Court and the order of the learned Sessions Judge was accordingly quashed. As stated above, the petitioner Zareef Khan before knocking at the door of this Court under section 561-A, Cr.P.C had properly availed the adequate remedy available to him under the law and this Court granted him relief in a petition under section 561-A, Cr.P.C and not under Article 199 of the Constitution of the Islamic Republic of Pakistan. We have also observed earlier, that the matter in this case does not purely pertain to a civil liability between the parties as evident from the proceedings conducted before the learned Magistrate. Therefore, the authority referred to by the learned Counsel is of no help of the petitioner.

9. The other judgment of this Court in the case of Muhammad Shafiq and 5 others v. Political Agent, Khyber Agency and 7 others, is reported in 1998 PCr.LJ 1347. No doubt the said judgment has been delivered under Article 199 but in the said writ petition the warrant of arrest issued against the petitioners by the Political Authorities was questioned and not the proceedings of the Magistrate under section 86-A, Cr.P.C, as the warrant was held to be not worth execution. Against the warrant of arrest, the writ petition of the present petitioner has already been entertained by this Court with the directions to the Superintendent Central Jail, Peshawar (as the petitioner was already in jail in some other case) that he should not be removed/shifted to the tribal territory without conducting proceedings under section 86-A, Cr.P.C. The said order of this Court was duly complied with and the petitioner was produced before the Court of Judicial Magistrate, where he faced the proceedings under section 86-A,Cr.P.C., and vide decision of the learned Magistrate the petitioner has been removed in custody to the tribal territory.

10. Another important aspect of this case is that the petitioner is a "Shinwari" by caste, which tribe also resides in the tribal belt of N.-W.F.P (Pakistan). The petitioner has admitted in his statement before the Magistrate that his father belongs to "Maklizai Kurram Agency". He has also admitted it correct that he had obtained Passports from the Political Agents of Parachinar and FR Kohat In these circumstances, the petitioner being also a' tribal man, cannot invoke the constitutional jurisdiction of this Court when the dispute between the parties is with regard to a deal finalized in the tribal territory of Khyber Agency and the Political Authorities are competent under the Frontier Crimes Regulation to proceed with the matter.

11. Anyhow the law has already undertaken its due course and the petitioner has already been sent to the Court of APA Khyber Agency to face the charge. Therefore, in our opinion, it cannot be right to grant a declaration that the petitioner is innocent when he has already been dealt with in accordance with law and sent to the concerned Court where prosecution is to start against him. It can also not be declared that the facts to be alleged by the prosecution do not in law prove the offence charged in view of the statements recorded by both the parties before the Court of the Judicial Magistrate.

12. For the aforesaid reasons, we find that the writ petition in hand is without force and also not maintainable for want of jurisdiction; hence the same is hereby dismissed in limine. H.B.T./151/P Petition dismissed.