SALIM KHAN, J.--- Khawaja Muhammad Shabir, petitioner, submitted through the present writ petition that some amount of Muhammad Siddique was outstanding against him, that respondent No,1 instituted suit No,559/1 for the recovery of said amount in the Court of Civil Judge Peshawar, that respondent No,1 later on filed an application before respondent No,2 under the Frontier Crimes Regulation, 1901, on which the latter issued warrant of arrest against the petitioner, and that an attempt was also made by the police to arrest the petitioner.
2. The present writ petition was admitted to full hearing, vide order dated 26-5-2004, with notice to the respondents and, in the meanwhile, the warrant of arrest issued against the petitioner by respondents No,2 was directed to be suspended. We heard M/s Jehanzeb Khan, Advocate, for the petitioner, Pir Liaqat Ali Shah, Additional Advocate-General for respondents Nos.2 and 3, while respondent No,1 has already been placed ex parte vide order dated 4-10-2004 and perused the record.
3. Subsection (1) of section 8 of the Frontier Crimes Regulation, 1901, is to the effect that where the Deputy Commissioner is satisfied, from a police report or other information, that a dispute exists which is likely to cause a blood-feud or murder, or culpable homicide not amounting to murder, or mischief or a breach of the peace, or in which either or any of the parties belongs to a frontier tribe he may, if he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the consequences anticipated, and if a suit is not pending in respect of the dispute, make an order in writing, stating the grounds of his being so satisfied, referring the dispute to a Council of Elders, and requiring the Council to come to a finding on the matters in dispute after making inquiry as may be necessary and after hearing the parties. The members of the Council of Elders shall in each case, be nominated and appointed by the Deputy Commissioner.
4. It is worth-mentioning that the Frontier Crimes Regulation, 1901, was applicable to the whole of the North-West Frontier Province, including the Provincially Administered Tribal Areas (hereinafter referred to as PATAs) and the Federally Administered Tribal Areas (hereinafter referred to as FATAs).
Section 4 as well as other sections of the said Regulation refer to the powers of the Magistrate, Additional District Magistrate, Deputy Commissioner and the Provincial Government. The settled areas and the PATAs of the North-West Frontier Province were later on excluded from the operation of the said Regulation, and it remained operative only in the FATAs. The contents and provisions of the said Regulation could not keep pace with the passage of time and, therefore, were not amended from time to time in order to suit to the prevailing circumstances in many aspects. The Civil Courts have never been established in the FATAs, thus, the provision of section 8 of the Regulation of 1901 to the extent of pendency of a suit in respect of the dispute in the areas is redundant in respect of the FATAs. There are no Police Stations in the FATAs on the lines as of Police Stations in. The other areas of the Province and, therefore, the question of a police report, in strict sense of the term, also does not arise.
5. The first condition in section 8 of the Frontier Crimes Regulation, 1901 is that the Deputy Commissioner (an officer so authorized), has to be satisfied from a police report or other information that a dispute exists. Such dispute must be likely to cause a blood-feud or murder, or culpable homicide not amounting to murd6r, or mischief or a breach of the peace. In the alterative, (as the word is "or" and is not "and") either or any of the parties must belong to a frontier tribe. But the Deputy Commissioner must have reasons to consider that the settlement of a dispute in the manner provided by section 8 of the Frontier Crimes Regulation, 1901, will tend to prevent or terminate the consequences anticipated. It means that he must have the reasons to consider that causing of blood-feud or murder, or culpable homicide not amounting to murder, or mischief or a breach of the peace, as the consequences anticipated, are expected to be prevented or terminated by settlement of the dispute under section 8 of the said Regulation of 1901. In all these circumstances, the Deputy Commissioner shall have to ascertain that a suit was not pending in respect of the dispute. As for FATAs, there is no chance of pendency of a civil suit, but there may be chances and occasions when a suit in respect of the dispute may be pending in the Courts established in the North-West Frontier Province, excluding the FATAs.
6. The main anchor for the assumption of jurisdiction and exercise of powers by the Deputy Commissioner is that the dispute must have arisen in the FATAs. Any dispute arising in the settled areas or PATAs, is out of the jurisdiction of Deputy Commissioner concerned working in the FATAs.
He is, therefore, neither authorized nor, required by law to take cognizance of a complaint in respect a dispute which might have arisen in the settled areas of the PATAs, in spite of the fact that either or any of the parties to a dispute belongs to a frontier tribe. The words "frontier tribe", though applicable to all the residents of the North-West Frontier Province and the, frontier tribes of Balochistan, appear to has been restricted by the present circumstances, and due to applicability of the Frontier Crimes Regulation, 1901, to the FATAs only, to the residents of Federally Administered Tribal Areas.
7. It has clearly been proved on record and is an admitted fact between the parties that civil suit was pending in the Court of Civil Judge Peshawar in respect of the dispute between the petitioner and respondent No,
1. Section 10 of the Frontier Crimes Regulation, 1901, is to the effect that no Civil Court shall take cognizance of any claim with respect to which the Deputy Commissioner has proceeded under section 8, subsection (3), clause (a), clause (b) or clause (d). The Civil Court, if any established in the FATAs would have had no power to take cognizance of a dispute with respect to which the Deputy Commissioner had proceeded as mentioned above. But the Frontier Crimes Regulation, 1901 is not applicable outside FATAs. Even otherwise, Suit No,559/1 mentioned in the writ petition and admittedly by the respondents had been instituted prior to the compliant made to the concerned Deputy Commissioner.
8. Section 85, Cr.P.0 prescribes the procedure for arrest of a person against whom warrant has been issued. A warrant of arrest, however, may be issued by a Court under the Code of Criminal Procedure, 1898. Such warrant is issued by the Court, in whose jurisdiction an offence has been committed or is likely to be committed. Section 86-A, Cr.P.0 prescribes the procedure for the removal in custody of a person arrested under section 85, Cr.P.0 to any place in the Tribal Areas.
The person so arrested shall have to be produced before a Magistrate within the local limits of whose jurisdiction the arrest was made, and further proceedings shall be conducted by such Magistrate in accordance with the provisions of section 86-A, Cr.P.C. In the present case, arrest of the petitioner has not been made as yet and, therefore, the Magistrate a Peshawar had no occasion to hear the case and tentatively assess whether a strong or probable presumption had been raised that the person arrested had committed the offence mentioned in the warrant. The said Magistrate could come to the conclusion that either the offence was not committed or was committed outside the jurisdiction of the Magistrate who had issued the warrant:
9. In the circumstances of the present writ petition, we are of the . View that the dispute between the petitioner and respondent No,1 had arisen at Peshawar, and civil suit regarding the same was pending at Peshawar, which is to be decided on its own merits. Thus, the warrant issued by the Deputy Commissioner concerned was not executable at Peshawar as it was not covered by the provisions of Section 8 of the Frontier Crimes Regulation, 1901. We, therefore, accept the present writ petition and declare the impugned warrant of arrest as illegal, without jurisdiction and without lawful authority.