P L D 1969 Peshawar 101 (PLP)

Maqbul Elahi Malik for Petitioner. SHAKIRULLAH JAN, J.‑

I his is a petition under Article 98 of the Constitution of the Islamic. Republic of Pakistan, by Ihsanullah, Gula and Mir Afzal, residents of Alam Gudar, Tehsil Bara, Khyber agency, for a declaration that the orders, dated 9‑5‑1967, passed by respondent No. 1 and 29‑12‑1966. passed by respondent No. 2, are ultra Tires the provisions of the Frontier Crimes Regulations, contrary to the principle of natural justice and without jurisdiction.

2. It was alleged that a dacoity was allegedly committed in Peshawar Cantt. : near the National and Grindlays Bank Ltd. on 17‑10‑1966 and a case under section 395, P. P. C. was registered against certain persons in Police Station, West Canton ment on the same day. All the accused, except one in the above‑mentioned case, are said to have been arrested by the Police. On the 19th of November 1966, Mr. Fakhruz Zaman Khan, the then Political Agent. Khyber purporting to act under section 22 of the F. C. R., subject to the approval by the Commissioner (F. C. R.), sentenced both the Sepah of Illamgudar and Sikander Khel, Kuki Khels of Lashera Gudar to pay a collective fine of Rs. 15,000 each. This order was approved by the Commissioner (F. C. R.) on 11‑1‑1967. The revision petition preferred against the above‑mentioned order was dismissed by the Commissioner, Peshawar Division, by his order, dated 9‑5‑1967.

3. The above‑mentioned two orders are challenged on the ground that they are in contravention of the provisions of section 22 of the Frontier Crimes Regulation, inasmuch as no approval of the Commissioner was obtained before ordering the petitioners to deposit a fine of Its. 15,000, and therefore, the Political Agent had acted in excess of jurisdiction. That the impugned order of respondent No. 2 was based on flimsy and unfounded reasons. That the accused in the dacoity case were not connected with the petitioners, and there was no reason for them to help and harbour them.

4. After hearing the learned counsel for the petitioners and going through the orders passed by the Political Agent, Khyber and Commissioner we are of the opinion that this petition is not maintainable. The impugned order, dated 29‑12‑1966 was passed by the Political Agent, Khyber Agency under section 22 of the F. C. R., and this Court has no jurisdiction to interfere with the above‑mentioned order under Article 98 of the Constitution. In this view, we rely upon Article 223, sub‑Article (5) of the Constitution, which completely bars the jurisdiction of the High Court in relation to the Tribal Area, and is in the following words :‑ Notwithstanding anything in this Constitution, neither the Supreme Court nor a High Court shall, unless the Central Legislature by law otherwise provides, exercise any jurisdiction under this Constitution in relatian to a Tribal Area.

5. The learned counsel for the petitioners, however, urged that this Court has the jurisdiction to entertain the petition and placed reliance on Act II of 1964, Tribal Areas (Restoration of Jurisdiction) Act, 1964. Section 2 of the above‑mentioned Act is in the following words :‑ "The Supreme Court and the High Court of West Pakistan shall exercise in relation to the Tribal Areas of the Quetta Division the same jurisdiction as was exercisable by them in relation to these areas before the commencement of the Constitution (First Amendment) Act, 1963 (1 of 1964)." This Act, in our opinion, is not applicable, because it was with respect to the restoration of jurisdiction of the High Court in relation to the Tribal Areas of Quetta Division. Khyber agency where the impugned order was passed by respondent No. 2 is in Peshawar Division to which this Act has not been extended, and so in these circumstances, we hold that sub article (5) of Article 223 of the Constitution bars the jurisdiction of the High Court in relation to the Tribal Areas, and as such we have no jurisdiction to entertain this petition and dismiss it In limine. Petition dismissed in limine.