P L D 1988 Peshawar 11 (PLP)

ABDUL KARIM KUNDI, J.

Hazrat Mohammad and Guli-ur- Rehman, the writ petitioners charged under section 302/34, PPC were released on bail by the Court of Asstt. Commissioner Timergara, District Dir under the third proviso to subsection (1) of section 497, Cr.P.C. since they had been detained for the offence for a continuous period exceeding two years and their trial for the offence has not concluded. Their bails were cancelled by the learned Additional Commissioner, Malakand Division, the appellate forum with reference to an authority of the Baluchistan High Court published in 1984 P Cr.L J 411, holding that the third proviso to subsection (I) of section 497 added by Code of Criminal Procedure (Second Amendment) Ordinance LXXI of 1979 was not applicable to Tribal Areas unless orders in -terms of Article 247 of the Constitution were made in this behalf. The aforesaid orders of the Additional Commissioner were further confirmed by the Additional Secretary Home and Tribal Affairs in revision. The petitioners have challenged the orders of the Addl. Commissioner and Additional Secretary vis-a-vis the cancellation of their bail contending that the authority of the Baluchistan High Court was not applicable in case of the Provincially Administered Tribal Area of NWFP and that since the Code of Criminal Procedure was applied to PATA, any amendment in the Code will also be ipso facto applicable to PATA.

2. After hearing Mr. Mohammad Aman Khan, Advocate, learned counsel for the petitioners at some-length we confronted him with Article 247(3) of the Constitution reading that . . . . . . . . . .no Act of Parliament or a Provincial Assembly shall apply to a Provincially Administered Tribal Area or to any part thereof unless the Governor of the Province in which the Tribal Area is situate with the approval of the President so directs. . . . . . . . . . . ." Clause (4) of the Article was read as that the President may with respect to any matter within the legislative competence of the Parliament and the Governor of a Province with the prior approval of the President may with respect to any matter within the legislative competent of the Provincial Assembly make Regulation for the peace and good Govt. of a Provincially Admintered Tribal Area of any part thereof situated in the Province. In view thereof it was pointed out by the learned counsel for the petitioners, that there is to be made independent legislation through regulation by the President in case of PATA in respect of matters within the legislative competence of a Parliament or the Governor of a Province to make Regulation for PATA or part thereof situate in his Province in respect of matters within the legislative competence of the Provincial Assembly. As for act of a Parliament is concerned including the amending Act or Ordinance, the same shall be applied independently to PATA by the Governor of the Province in which the tribal area is situate with the approval of 'the President. Since the Code of Criminal Procedure (Second Amendment) Ordinance LXXI of 1979, an act of the Parliament has not been applied by the Governor of NWFP to PATA with the approval of the President, as such, the said law effecting amendment in section 497(1), Cr.P.C. shall not apply to the PATH of the Province and the unamended Code of Criminal Procedure still holds the field.

3. That being the legal-position we do not find any merit' in this) writ petition and accordingly order its dismissal in limine. Civil Misc. for interim bail ipso facto is also dismissed. M.Y.H/562/P Petition dismissed.