P L D 1970 Lahore 888 (PLP)

A. R. SHEIKH, J.--‑The facts relevant for the disposal of this writ petition are these. Wazir Ali, respondent No. 2, made a complaint under section 420 of the Pakistan Penal Code on the 21st of February 1959 before the Political Agent, Kurram (respondent No. 1), saying that Dr. Abdul Ahad, the petitioner, fraudulently introduced himself to the respondent‑complainant at Parachinar as a relative of the proprietor of Messrs Shahnawaz & Company, Lahore, and Impressed upon him that he was in a position to obtain from the said firm a Parking diesel engine at the control rate and despite receipt of Rs. 15,976.00, the petitioner has failed to supply the goods and has thus cheated him. A bailable warrant of arrest was issued by the Political Agent Kurram, against the petitioner for the 28th of March 1959. The petitioner 1tioved the High Court for transfer of the case from Parachinar to Lahore, but his prayer was disallowed by the learned Chief Justice by order dated the 25th of March 1959. Subsequently the petitioner was arrested and the case was referred to the Council‑of‑Elders under the Frontier Crimes Regulation of 1901 (hereinafter called the F. C. R.). The Council unanimously held that the petitioner should pay Rs. 15,976.00 and in addition pay court‑fee, and Rs. 85.00 as Sharmana and a sheep as Nanawati to the respondent‑com plainant. The award was approved by the Political Agent and a decree passed in accordance therewith on the 16th of March 1960. The petitioner preferred a revision petition before the Commissioner, F. C. R. (Frontier Regions), who after finding that the petitioner is a permanent resident of Lahore and is a Punjabi by caste, sections 8 and 11 of the F. C. R. are not applicable to him, quashed the proceedings under the F. C. R. and directed that the petitioner be tried judicially under the Pakistan Penal Code, by his order dated the 21st of July 1960. Respondent complainant's review petition also failed before the Commissioner F. C. R. on the 3rd of November 1960. The respondent‑complainant, however, expressed his unwillingness to proceed under the Pakistan Penal Code and on this statement of his (recorded by the Political Agent on the 22nd of November 1960), the complaint was consigned to the record room and the petitioner was ordered to be released forthwith from jail. On the 18th of August 1962, the respondent‑complainant made an application before the Political Agent that his case as against the petitioner may be revived under the Pakistan Penal Code. This application of his was perused by the successor Political Agent and ultimately, on the 28th of December 1965 he (the Political Agent) passed an order to the effect that in view of the previous order dated the 22nd of November 1960 of his predecessor lie had no jurisdiction to re‑open the case. The file was accordingly consigned to the records. The respondent complainant preferred a revision petition before the Commissioner, F. C. R. (Frontier Regions), Peshawar, who without issuing any notice to the petitioner or giving him a hearing, passed the following order on the 24th of November 1966 : -- "I have gone through the record of the case. The averment made by the petitioner in para. 1 of his petition does hold water. It would be in the interest of justice if the accused is tried under the ordinary law. I would therefore vacate the above order of the P. A. Kurram and remand the case to him for judicial trial under the Pakistan Penal Code." In pursuance of this order of the Commissioner, F. C. R., the Political Agent, Kurram, exercising powers of the District Magistrate has issued bailable warrants of arrest of the petitioner on the 22nd of August 1967 addressed to the Deputy Commis sioner, Lahore, for the arrest of the petition and these warrants were threatened to be executed by the Additional District Magistrate, Lahore (respondent No.3), when the petitioner came up to this Court and.‑r Article 98 of the Constitution Act of 1962, for the following four reliefs:-- "(a) Quashing the order of A. D. M., Lahore, ordering bail to the petitioner, in execution of warrant of arrest, under section 120, P. P. C. issued by the Political Agent, Parachinar, and arresting the petitioner and enlarging him on bail, and thus detaining him, the order being against law and without legal authority. (b) Restraining the Additional District Magistrate, Lahore, from detaining the petitioner and releasing hint (petitioner) from detention, on execution of bail bond, and for declaring the order of A. D. M., Lahore, for arresting the petitioner and directing execution of the bail bond to be illegal and without lawful authority. (c) Restraining the A. D. M., Lahore, from executing any warrant of arrest, which he may receive from the Political Agent, Parachinar, in future. (d) Issuance of writ of `habeas corpus' against the District Magistrate, Lahore, and directing him to release and absolve the petitioner from the bail bond already executed." While admitting this writ petition to a full hearing, the operation of the process issued by the Political Agent, against the petitioner was suspended. It was further directed that fresh process issued by the Political Agent in this respect will also ire kept is abeyance and will not be served on the petitioner.

2. The case was argued before us at length on the basis, of the decision in Zewar Khan v. The Superintendent, Land Customs, Torkham and 2 others (Writ Petition No. 29 of 1967, decided by the Peshawar Bench on the 9th of October 1958) and judgment was reserved. Subsequently notice was issued to the Attorney‑General to address the Court on the constitutional problems raised and the case has been re‑heard to‑day. The first point raised on behalf of the petitioner that the Frontier Regions (Tribal Areas) are not a part of Pakistan in view of the decision in Zewar Khan v. The Superintendent, Land Customs, Torkham and 2 others and, therefore, the warrant of arrest issued by the Political Agent of that area is not executable in Lahore, is no longer available to the petitioner, because of the judgment of reversal of their Lordships of the Supreme Court in The Superintendent, Land Customs, Torkham Khyber Agency v. Zewar Khan and 2 others (P L D 1969 S C 485). Learned counsel for the petitioner has, however, argued that de3pite the provisions of Article 223 of the abrogated Constitution Act of 1962, as the warrant is being executed within the territorial jurisdiction of this Court, the propriety or legality of execution of that warrant can be questioned before this Court under Article

98. In support of this argument he has invited our attention to Abdal Sand Khan v. Subedar‑Major Hamesh Gal and another (P L D 1958 Lah. 1039).

3. The learned Attorney‑General has placed before us the latest exposition of law on the question of availability of writ jurisdiction with regard to orders passed in Tribal Areas, in which areas the writ of the High Court does not run in view of Article 223(5). It has been argued that despite the bar contained in the said Article, this Court in the exercise of writ jurisdiction is fully entitled and competent to look into the legality and propriety of the execution of the warrant of arrest in compliance with the orders passed by the Political Agent, Kurram, exercising the powers of the District Magistrate. He has invited our attention to The State v. Dosso and another (P L D 1958 S C (Pak.) 533) and Piao Gal v. The State (P L D 1960 S C (Pak.) 30). The next case in the series, namely, Sar Khan v. The State (P L D 1967 S C 149), has also been brought to our notice and the final pronouncement in .lamil Ahinad and another v. The State and S others (P L D 1969 S C 344) has been referred, in which their Lordships of the Supreme Court after referring to all the previous authorities on the subject have held as under :‑ " . . As all these actions took place in the tribal territory of Miranshah, including the order for the execution of the warrants which was lawfully made the jurisdiction of the High Court was clearly barred for any redress against those actions. It was rightly conceded by the learned Attorney‑General on the basis of the decisions of this Court in the cases of Piao Gul v. The State and Sar Khan v. The State that if the cause of action had arisen to the appellants within the territorial jurisdiction of the High Court, for instance, if they had been arrested or detained within those territories without a lawful authority, the High Court would certainly have had the jurisdiction to interfere in writ jurisdiction to examine the legality and the lawful authority for that action . . . . . . " The Supreme Court's judgment in The Superintendent, Land Customs, Torkham (Khyber Agency) v. Zewar Khan and 2 others has also been relied on for the purpose that writ jurisdic tion can be invoked in the instant case, as the order is being executed within the territory of West Pakistan. Against this background of the case‑law, the learned Attorney‑General has rightly argued that the final order re‑opening the case after a period of six years having been passed by the Commissioner, F. C. R. (Frontier Regions) at Peshawar, the said order is amenable to writ jurisdiction of this Court for that reason alone. It has been next contended that the said order having been passed without notice and behind the back of the petitioner, is violative of the principles of natural justice and is void for that reason also. Has referred to the orders issued by the Governor‑General‑in‑Council in exercise of the powers conferred by subsections (1) and (2) of section 313 of the Government of India Act, 1935, and of all other powers enabling him in this behalf, by means of External Affairs Department's Notifi cation No. 8‑W, dated the 3rd of September 1939, appearing in the Gazette of India, Extraordinary, pertaining to application of the enactments, namely, the Indian Penal Code, the Code of Criminal Procedure, the Frontier Crimes Regulation and the Frontier Murderous Outrages Regulation, 1901, to Tribal Areas and the conferment of jurisdiction on Political Officers and the Court of the Judicial Commissioner in North‑West Frontier Province under the Criminal Procedure Code with regard to the said areas. It is maintained that if the respondent‑complainant felt aggrieved by the order of the Political Agent consigning his complaint to the record room, because of his obduracy to proceed against the petitioner under the Pakistan Penal Code, he should have had recourse to proper remedy under the law, but instead he deliberately pursued the wrong remedy of getting his complaint revived after such a long time. The learned Attorney‑General contends that in the circumstances there being no legal warrant for the Commissioner, F. C. R. (Frontier Regions) to resurrect after six years the complaint consigned to the record room on the 22nd of November 1960, his order is without lawful Y authority and is of no legal effect. The learned Attorney‑General further maintains that the basic order having been found to void, the edifice built thereon in the form of consequential order of arrest passed by the Political Agent as District Magistrate automatically falls to the ground and for this proposition of law he refers to Yousaf Ali v. Muhammad Aslam Zia and 2 others (P L D 1958 S C (Pak.) 104). It is argued that although the tenor of the impugn, warrant shows no defect, yet because the very authority for issuing such warrant is lacking in the case, the warrant is inexecutable and the petitioner is entitled to the relief claimed. Learned counsel for the respondent‑complainant has not been able to meet these arguments. All that he has said is that because under the F. C. R., the Commissioner, F. C. R. is empowered under revisional jurisdiction to reverse the orders passed earlier, there was no fetter or limitation on his power to re‑open the case. We are afraid the argument is misconceived because once the Commissioner, F. C. R. had held that the case was not covered by the F. C. R., no subsequent action could be taken against the petitioner under the F. C. R., nor were any proceedings under the F. C. R., whether by way of appeal or revision, open to the respondent‑complainant.

4. For the reasons given above, we hold that the orders passed by the Commissioner F. C. R. on the 24th of November 1966 having been passed without lawful authority, merit quashing and we quash the same. The consequential order of issuances of warrant of arrest against the petitioner by the Political Agent, Kurram, is also a void order and the warrants of arrest of the petitioner are inexecutable. We hold accordingly and direct the District Magistrate, Lahore, to absolve the petitioner from the bail bond already executed. The writ petition succeeds and is allowed in the terms above. However, the parties are left to bear their own costs. K. B. A. Order accordingly.