1997 PLP 152 (MLD)

SARDAR MUHAMMAD RAZA, J.

One Sarkari Khan, resident of Ghandaho, Mohamand Agency lodged a criminal case under sections 419/420, P.P.C. read with section 11 of the Frontier Crimes Regulation before Assistant Political Agent Mohamand Ghalanai against Haji Muhammad Sharif of village Langra, Abbottabad. The latter issued a non-bailable warrant of arrest against Haji Muhammad Sharif which either through proper or improper channel reached Abbottabad and so he was arrested by C.I.A. Staff, Abbottabad on 4-4-1996. On the same day Inspector C.I.A. produced the detenu Haji Muhammad Sharif in custody before the Ilaqa Magistrate.

2. Sub-Divisional Magistrate, Abbottabad acting as District Magistrate, through his order dated 4-4-1996 forwarded the detenu in custody to the authority issuing the non-bailable warrant. Such removal in custody to the tribal area is challenged by Haji Muhammad Sharif before this Court under Article 199 of the Constitution.

3. It may be stated at the very outset that Sarkari Khan complainant (respondent No.7) before A.P.A. Ghalanai had subsequently admitted that the petitioner Haji Muhammad Sharif was not known to him and he had no business dealings with him at all and that the complaint was instituted at the behest of someone else. The petitioner alleges that it was initiated at the instance of Haji Muhammad Anwar of Shinkiari, District Mansehra (respondent No.8) with whom he had criminal as well as civil litigation and thus the entire proceedings initiated at tribal territory were mala fide in order to harass the petitioner. It is most probably in this background that the petitioner was released on bail by A.P.A., Ghalanai. As the release on bail by the said authority is not a proper relief for the petitioner, we would enter into the merits of the writ petition.

4. The Supreme Court of Pakistan in "Chaudhari Manzoor Elahi v. Federation of Pakistan etc.", PLD 1975 SC 66 and in "Muhammad Siddique and others v. Government of Pakistan" 1981 SCMR 1022, with reference to the matters of like nature has categorically laid down that the jurisdiction of the Supreme Court and High Courts with regard to the tribal areas is excluded only in matters exclusively concerned with tribal areas. The settled principle of law is that the jurisdiction of superior Courts cannot be excluded in matters in which any part of cause of action accrues at a place outside tribal area and inside the settled area.

5. In the instant case a citizen of Pakistan stands arrested within the limits of Abbottabad District and is removed therefrom to the tribal area. The major infringement of right has admittedly taken place within the settled area and thus s this Court has got the jurisdiction to hear the matter and adjudicate upon under Article 199 of the Constitution.

6. Removal in custody of a citizen of Pakistan from the settled area of Pakistan to the Tribal area is elaborately provided by section 86-A of the Cr.P.C. It is mandatory for a police officer in such circumstances to produce the person arrested before a Magistrate within the local limits of whose jurisdiction the arrest is made. So far as this procedure is concerned, to this extent, the petitioner was rightly produced before the Ilaqa Magistrate by Inspector C.I.A., Abbottabad.

7. It is further provided under section 86-A, Cr.P.C. that such Magistrate in directing the removal shall hear the case in the same manner and have the same jurisdiction and power, including the power to order the production of evidence, as if the person arrested is charged with an offence committed within the jurisdiction of such Magistrate. Removal in custody is to be ordered only and only if such Magistrate 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. In case such Magistrate is not satisfied, he shall not direct the removal in custody of the detenu to the tribal area.

8. This provision of law is enacted only to ensure that a citizen of Pakistan is neither harassed nor insulted nor blackmailed through the mala fide use of a hierarchy that sits away from the territorial jurisdiction of the normal course of law and far beyond the applicability of normal and civilized laws of the land. Keeping this in view, we are shocked to observe that the S.D.M., Abbottabad through the impugned order dated 4-4-1996 has given an impression; that he was even not aware of the fact that section like 86-A, Cr.P.C. at all exists in the Criminal Procedure Code. He, in turn, has given an illiterate impression that he is simply a post office or an octroi post which matters only in transit.

9. After narration of the background, the operative part of the order of S.D.M., Abbottabad is that as the warrant stands issued ..."so the local police is therefore, directed to produce the accused before the said Court" ... He never applied his mind as to whether the warrant issued was genuine, as to whether any prima facie case existed against the detenu. He never called for the record and even did not bother to see the F.I.R. It was in blatant disregard of section 86-A, Cr.P.C. were not merely illegal but inhuman treatment was meted' out to a citizen of Pakistan, Such incidences of exploitation and unlawful removal of citizens of Pakistan from settled areas have become so frequent these days that we are constrained to remark that such dereliction from duty and blatant disregard of a mandatory provision of law by a Magistrate should be taken serious note of and in appropriate cases the magisterial/judicial power should be withdrawn from such Magistrates.

10. These were the circumstances and reasons for which we had accepted the writ petition of Haji Muhammad Sharif on 23-7-1996 and had set aside the order of removal of the petitioner to the tribal areas with direction that he needed not to surrender to the bail bonds already submitted before the political authority at Mohmand Agency, Ghalanai. N.H.Q./2035/P Petition accepted.