Asim Khan was tried along with another namely, Abdul Hakim by a Council-of-Elders for the murder of one Saleh Muhammad son of Baghi Jan at 8 p. m. On 30-11-1967, in a Hujra, at Kopar which is located in the protected area of Malakand, provincially admin1stered Tribal Area, ever since the promulgation of Regulation No. 1 of 1969 on the 15th of August, 1969. A reference to the Council-of-Elders was made by the Deputy Commissioner, Malakand on the 22nd January, 1968 and he, by his order dated 6.4-1968, acting on the recommendations of the Jirga found Asim Khan guilty of an offence under section 302, P. P. C. And sentenced him to 14 years' R. I. This order was passed subject to the confirmation by the Commissioner, F. C. R. (F. R.), Peshawar, in exercise of his powers under section 11, F. C. R. With a further direction that after the expiry of the sentence Asim Khan shall be 'Dushman' of the complainant and his 'Nasab' and remain precluded from residing within the area of Sakhakot. It may be mentioned that Abdul Hakim, the other accused was acquitted. It appears that two revision petitions were moved; one being by Asim Khan, and papers were also laid for confirmation before the Commissioner, F. C. R. (F.R.), Peshawar Division. The Commissioner, by his order dated 25-11-1968, upheld the findings of the Political Agent, Malakand and confirmed the sentence that had been imposed upon Asim Khan. It may be mentioned that the Political Agent noticed that the Council-of-Elders appointed by him "conducted enquiries on the spot, heard the parties, studied the file and returned a unanimous award observing that the accused Asim Khan has committed the offence because he (Asim Khan) had promised to give his daughter in Nikah to Saleh Muhammad son of the complainant. But the refused to give her in marriage to Saleh Muhammad when the deceased wanted to marry her." As far as the recommendation of the Council-of --Elders is concerned, a reference to the order of the Political Agent will show that they suggested that the complainant Bagbi Jan along with his two 'Nasabs' who are Sahib-i-Jaidad persons from the area of Sakhakot should take oath to the effect that the accused Asim Khan had murdered his son Saleh Muhammad and if this was done, the accused shall be held guilty and punished according to law, declared Dushman of the complainant and his Nasab and precluded from residing within the area of Sakhakot. In the first instance both Asim Khan accused and the complainant Bagbi Jan hesitated and did not accept the award, but their objections were overruled as the award was in the opinion of the Political Agent in keeping with the local custom. However, Arif son of Mehrab Gul, Sher son of Hassan Gul along with Baghi Jan complainant took an oath on the Holy Quran and stated that Asim Khan had murdered Saleh Muhammad.
2. Sherzada Khan petitioner who is son of Asim Khan, the convicted person, moved an application under Article 98 of the Constitution of 1962 read with section 491, Cr. P. C. On the 6th of January, 1969, seeking a declara--tion to the effect that the conviction of Asim Khan under section,302, P. P.
C. Read section 11, F. C. R. By the Political Agent Malakand Agency-respondent No. 2, confirmed by the Commissioner (F. C. R.) Peshawar-respondent No. 1, was without jurisdiction, illegal and therefore null and void. Superintendent Central Jail, Peshawar, it may be mentioned, was made respondent No. 3 as Asim Khan was lodged with him ever since the latter's conviction.
3. The grounds that have been urged in support of the prayer are:-
(i) The F. C. R was not validly extended to Malakand Agency and in this respect reliance was placed on a decision of the Court in Writ Petition No. 29167, Zaiver Khan v. Superintendent Land Customs.
(ii) F. C. R. Was repugant to Article 2 of the Constitution of 1962.
(iii) The order of reference dated 22-1-1968 was incons1stent with the provisions of section 11 of the F. C. R.
(iv) The impugned orders were in violation of the principles of natural justice.
(v) The conviction and sentence could not be sustained as it was a case of no evidence.
The petition was admitted to hearing on 15-1-1969 to consider whether---
(i) the F. C. R. Had been extended to the Malakand Agency ?
(ii) the Tribunal acted in excess of its statutory powers and therefore its orders were without lawful authority?
Asim Khan petitioner, then in Peshawar Jail, was admitted to bail and as it is he is out of Jail ever- since then.
4. Before we proceed to discuss the ticklish question of jurisdiction on which both the sides have addressed at some length, we would like to dispose of all the grounds that have been taken including the contention that was urged before the D. B. When the Writ was admitted, that is to say, the Tribunal had acted in excess of its statutory jurisdiction.
5. The first ground was taken on the basis of the decision of this Court in Writ Petition No. 29/67 Zaiver Khan v. Superintendent Land Customs, but that decision no longer holds the field as on appeal by the Superintendent Lands Customs that decision was set aside PLD 1969 SC 485 refers.
It is not denied that the F. C. R. Was extended to Malakand Agency. Only the thing that has been doubted is the validity of the extension and that too on the basis of the judgment of this Court alluded to above. We will, therefore, repel the first ground that has been urged on behalf of the petitioner.
6. As far as the second ground is concerned, the petitioner wants us to strike down the F. C. R. For it is repugnant to Article 2 of the Constitution of 1962, which article has been since substituted by Article 4 of the Constitu--tion. It may be at once stated that except for a little polish in the drafting, Article 2 of the Constitution 1962 is identical in expression and substance with Article 4 of the Constitution. But it is difficult for us to take it for granted H that the F. C. R. Is not a law in the contemplation of Article 4 of the Constitution. It is true that the legal basis of the F. C. R. Can be questioned with reference to the Fundamental Rights incorporated in the Constitution but state of emergency remains in force and the Fundamental Rights which may be of some assistance remain suspended.
7. The third ground taken up also appears to be misconceived. It is true that the order of reference recites:- "Complainant Beghi Jan could not produce any eye-witness against any one of the accused though the murder was committed in the Hujra at 8 p. m.
In the interest of justice I consider it necessary that the question of guilt or innocence of the accused be referred to a Council-of-Elders . . "
But it is difficult to appreciate how this order is incons1stent with the provisions of section 11 of the F.
C. R. There is no doubt that the Deputy Commissioner has not asserted that it was inexpedient that the matter should go to the Court under the criminal procedure, but one should not lose sight of the fact that there were no Courts as classified in section 6 of the Criminal Procedure Code in the Malakand Agency. Any recital to this effect would have been out of context.
8. We have not been shown what principles of natural justice had the petitioner in his mind when he raised the objection as in ground No. 4. He has been heard and enquiry has been conducted by a Council-of-Elders. There is no allegation that there has been a secret enquiry or an enquiry behind D his back. In the beginning of this judgment, we have quoted the order of the Political Agent to show the types of enquiries that had been conducted by the Jirga members. There is no reference to secret enquiries or enquiries behind the back of the petitioner.
9. The contention of the learned counsel for the petitioner that there was no evidence on which the conviction of the petitioner could be founded, has not impressed us. While it is true that as is clear from the referring note, no person was forthcoming as an eye-witness of the occurrence, the petitioner has not been able to bring on record anything to show t hat there was no evidence whatsoever to connect him with the crime. The order of the Deputy Commissioner on the other hand shows that the Jirga Members not only heard the parties and studied the file but also conducted the enquiries on the spot, and as a result, came to the conclusion that the petitioner was guilty and did murder Saleh Muhammad deceased so as to relieve his daughter from the marriage commitment with the deceased. The motive give by the Jirga may not be convincing enough for taking away the life of another person. This may well be due to the anxiety of the Jirga to avoid embarras--ment or stigma on account of some role played by the petitioner's daughter, but it is well established that sufficiency of the motive given out will not lead to the conclusion that the person charged was guilty and vice versa. We are concerned in this case with the sole question as to whether there was evidence to connect the petitioner with the crime. As said before, the Jirga, on the basis of its enquiry on the spot, was convinced that there was evidence. But assuming that no direct evidence was available to connect the petitioner with the crime, it appears to us the requirements of custom that in such a situation the complainant and his two Nasbis should swear on the Holy Qur'an will result in evidence for the conclusion that the person against whom such sworn statement on the Holy Qur'an is given is indeed guilty. What we want to emphasise is that giving of an oath in accordance with the custom is not only a rule of procedure but also a rule of evidence. We are not concerned with the hazards envolved in the procedure. All that we have to see is as to F whether such a rule will yield evidence on which conviction can be grounded. That such evidence is acceptable to Shariat is axiomatic. The procedure prescribed for Liyan has been given in detail in the Holy Qur'an and an assertion or denial by oath has been treated equivalent to evidence. It will follow that no sooner Baghi Jan and his two Nasbis swore on the Holy Qur'an that the petitioner was guilty there was an evidence worth consideration before the Council-of-Elders.
10. The contention that the Commissioner, F. C. R. Has exceeded his jurisdiction or statutory powers was not pressed into service by the learned counsel for the petitioner at the time of arguments. On our part, we have failed to discover on what basis this ground was taken. There were statutory powers with the Political Agent to refer the matter to the Council-of-Elders and the order passed by him as also the order of the Commissioner confirming the order of a subordinate are strictly in conformity with the requirements of the F. C. R.
11. It may be recalled that the petitioner's case was referred to the Council-of-Elders, decided by the Political Agent and the conviction and sentence were confirmed on dates prior to the enforcement of Regulation No. 1 on 16-8-1969, that is to say, the petitioner was lodged in pursuance of the conviction and sentence passed in accordance with law in the Central Jail, Peshawar before that Regulation No. 1 came into force and in this custody he was when the present Writ Petition was filed on the 6th of January, 1969. It will be seen that ever-since the presentation of the writ petition many h1storical events have taken place:-
(i) Regulation No. 1 of 1969 where by the admin1stration of Malakand Agency was taken over came into force on 15-8-1969.
(ii) President's Order No. 28 of 1970, whereby the jurisdiction of the Supreme Court to hear appeals from the orders of the Peshawar High Court in criminal matters was, inter alia, extended to Malakand Protected Area. By this order, the Peshawar High Court also was to have the same appellate jurisdiction and the same powers to confirm a sentence of death passed by the Court of Session as it has in relation to other areas of the N: W. F. P. Under the Code of Criminal Procedure, 1898.
(iii) The Constitution of 1962 was repealed by the Interim Constitution of Pakistan and the latter came into force on the 21st of April, 1972.
(iv) The Supreme Court and High Court (Extension of Jurisdiction to Certain Tribal Areas) Act, 1973, was brought on the Statute Book on the 9th February, 1973, and thus Malakand Protected Area came under the same local jurisdiction of the High Court, Peshawar as it exercised in the other areas of the N.-W. F. P.
(v) The Interim Constitution has been replaced by the Constitution on 15-8-1973.
12. In this context, it will be appropriate to take note of the authorities that have been cited at the bar. In cause calabre, The State v. Dosso and another (PLD 1958 SC (Pak.) 533), the observations of the Justice Cornelius, J., as his Lordship then was, which are pertinent, are contained in the following paragraph which can be quoted with advantage:-- "In the cases of Dosso and Muhammad Khan, the position is materially different in so far as the trial and all proceedings up to the conviction were held in a "special area" over which the High Court had no jurisdiction. It follows that the High Court had no authority to decide whether the trial and conviction were legal or otherwise. The only matter of which they could be seized was whether these persons were properly held in custody by the Jailer at Machh. For the decision of that question the learned Judges should have referred to section 15 and 16 of the Prisoners Act of 1900.
The Jailer at Machh was competent to give effect to a warrant for the detention of these two persons, according to the tenor of the warrant. Such a warrant under the official signature of a proper officer is by itself sufficient authority for holding these persons in custody. The judgment In the case does not show that the warrant was ever examined, much less that it was found to suffer- from defect of any kind and consequently the order for release of these two persons was clearly incorrect. It must accordingly be set aside and the appeal allowed for that purpose."
It is important that in the above case the judgment did not show that the warrant had been ever examined or found to suffer from the defect of any kind. Again the observations of his Lordship would imply that if in a case it can be shown that the warrant was invalid or it suffered from defect of any kind that is to say, it was by an officer who had no jurisdiction, it will be permissible for the High Court in the local jurisdiction of which such a person was lodged to take cognisance of the matter.
13. In a subsequent case of Piao Gul v. The State (PLD 1960 SC 307) which did not fall within the observations made in Dosso's case, that is to say, all the proceed--ings had been held at Peshawar and the Political Agent had only announced the decision in Jamrod Fort, the Supreme Court ruled that the case was amenable to the jurisdiction of the High Court, the judgment in the case was delivered by Cornelius, C. J., as his Lordship then was.
14. The third case on the point is Sar Khan v. The State (PLD1967 SC 149) wherein the facts were that Sar Khan who had committed offence at Landi Kotal had been tried, convicted and imprisoned within the territorial jurisdiction of this Court. In that case Cornelius, C. J. As his Lordship then was, availed of the opportunity to explain the effect of his Lordship's observations in Dosso's case his Lordship observed:- "What I meant to say was that if any of the proceedings in the case had been held in a territory where the writ of the High Court ran, it being a judicial proceeding, or at the very least a pretended judicial proceed--ing, The High Court had power under the writ of certiorari, then available, to require the proceedings to be certified to the High Court, and thereupon to examine them, in point of propriety and conformity with law. Since in that case, no part of the proceedings, including the issue of the warrant, had taken place within the jurisdiction of the High Court, the writ of certiorari was not available. But the writ of habeas corpus was available since the detention was in a place within the territorial jurisdiction of the High Court, and it was open to the High Court to examine under what authority the prisoner was being held. That authority was furnished exclusively by the warrants upon which the jailer had acted, and in the view I took, neither of those persons could be released unless the warrant was on its face found either to have been issued by authority not competent to issue it or to suffer from other defect."
15. The view of the matter that was taken by Chief Justice Cornelius is also supported by a Full Court judgment in Abdul Ghani and others v. Subedar Shoedar Khan Company and others. (PLD 1968 SC 131) The question before their Lordships at that time was as to whether the summons issued by the Assistant Political Officer in the Tribal Area of North Wazir1stan in the exercise of powers under section 8 of the F. C. R. Could be executed in the Settled Districts. Their Lordships of the Supreme Court found that since the summons were in excess of the statutory powers, the corrective procedure of writ jurisdiction would be available even in such case. The observations made on page 139 of the report read:-- "It will suffice to say that the Assistant Political Officer is a creature of statute and despite the provisions in the Regulation shutting out jurisdiction of the ordinary Courts in respect of orders passed or action taken under the Regulation, the corrective procedure of writ jurisdiction would be available if the authority concerned acts in excess of its statutory powers."
It may be added that the authority of the Supreme Court in Muhammad Akram v. State (PLD 1963 SC 373) was distinguished and law declared in Abdur Rauf and others v. Abdul Hamid and others (PLD 1965 SC 671), was followed reiterating that the High Court has got powers to issue a directive in a case in which an officer had acted in excess of his statutory powers. Their Lordships further observed :- "Anything done beyond or in excess of power conferred by statute can be brought within the power of avoidance vested in the High Court. In such a case the High Court can examine if the officer concerned has acted in accordance with the powers conferred on him by the Statute."
16. There is another set of authorities from the Supreme Court which will have to be noticed in the sequal. In Ihsanullah and others v. Commis--sioner F. C. R., Peshawar (1968 SCMR 974) dacoity was committed in the Peshawar Canton--ment. The culprits became fugitives and took shelter in the adjoining tribal area of Khyber Agency. So as to secure their surrender, the Political Agent took an action under section 22 of the F. C. R. And sentenced each tribe concerned to pay a fine of Rs 15,000. The action was with the approval of the Commissioner Peshawar and the revision was also dismissed. The affected tribes, it will be seen made a petition under Article 98 of the Constitution in the High Court and the same was dismissed on the ground that the jurisdiction of the High Court did not run into the tribal territory because of the bar created by sub-Article (5) of Article 223 of the Constitution of 1962. There was an appeal to the Supreme Court of Pakistan and their Lordship observed that the Article had been correctly applied in so much as the fine had been imposed about the recalcitrant behaviour of the appellants in their own area. The fine was realized in the tribal areas although it was subsequently deposited at Peshawar. Needless to say the fine had also been imposed on the tribe people. The three features of the case namely, the offence, people concerned and the deposit of the fine, all being in the tribal area, it was found that since the action of the Political Agent was in relation to and operative in the tribal area, the High Court was right in dismissing the petition.
17. In Jamil Ahmed and another v. State and S others (PLD 1969 SC 344), the Assistant Political Agent, North Wazir1stan vested with the powers of Magistrate First Class issued a warrant for service in Mardan on persons residing in Mardan. A writ petition was moved to seek the following remedies:--
(i) Quashment and modification of warrant of arrest issued by the A. P. O.
(ii) Directing the S. P., Peshawar and the S. P., Mardan not to execute the warrants.
(iii) Quashment of the proceedings under section 420 of the P. P. C. At Miran Shah.
It was ruled that these actions including the order for the execution of the warrants had been taken lawfully in Miran Shah and therefore the jurisdiction of the High Court could not be invoked. It was further observed, quite evidently approving the principle enunciated in PLD 1960 SC 307 and PLD 1967 SC 149 that if the petitioners had been arrested or detained within those territories, the result would have been different. It will be seen that the cases were distinguished on the short ground that in the case before their Lordships all the impugned actions had been taken in the tribal territory.
18. There is also a recent decision of the Supreme Court in Abdur Rahim and 2 others v. Home Secretary, Government of West Pakistan and another (PLD 1974 SC 109) wherein their Lordships of the Supreme Court have ruled that a Writ Petition cannot be allowed in relation to the tribal area even if the final authority is within the limits of its local jurisdiction and the petition though instituted prior to but comes up for decision after the Supreme Court and High Courts (Extension of Jurisdiction to Certain Tribal Areas) Act, 1973, for the Act does not operate retrospectively.
19. We are quite conscious of our limitations and are fully aware that the decisions of the Supreme Court of Pakistan are law declared and that we have to follow such law but it seems to us that we shall be failing in our duty if we do not notice, of course, with profound respect what follows:--
20. In the first place sub-Article (5) of Article 223 of the Constitution of 1962 no longer holds field and that the corresponding provision, namely, sub-Article (7) of Article 247 of the Constitution which is identical with the corresponding provision in the Interim Constitution reads:-- "(7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to Tribal Area, unless parliament by law otherwise provides: Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day."
It comes to this that sheet anchor of the argument on which the ruling rests no longer remains intact. Rather the deletion of the words "notwithstanding anything in this Constitution" would show that the Constitution-makers had changed their minds and did not intend that the jurisdiction under the Constitution which the Supreme Court or the High Court will otherwise have would stand affected. That is to say. If the Constitution was to give some jurisdiction to the Supreme Court or the High Court that might have been intended if that was not hit by the present language of Article 247(7).
21. In the second place, the words in relation to a tribal area were not intended to mean anything more than the tribal area. That is to say, these were not intended to include a case where jurisdiction was to be exercised in relation to tribal people or tribal affairs.
22. In the third place, a reference to sub-Article (1) of Article 199 of the Constitution will show that this Court has got jurisdiction to direct a person performing within its territorial jurisdiction functions in connection with the affairs of the Federation or a province or a local authority to restrain from anything which he is not permitted by law to do or to do anything which he is required by the law to do. Furthermore, it has jurisdiction to declare that any act done or proceedings taken within its territorial jurisdiction by a person performing functions in connection with the affairs of the Federation, a province or a local authority has been done or taken without lawful authority and is of no legal effect. The emphasis is on the territorial jurisdiction and it will be seen that but for the language used in Article 247 (7) this Court had jurisdiction even as respect tribal areas. It comes to this that the subsequent provision in Article 247 (7) is a limit upon plenary jurisdiction of this Court and therefore it requires to be construed strictly. That is to say, it shall be so interpreted that the jurisdiction of the High Court in so far as it has been excluded and relates to tribal areas is minimal.
It will be indeed negation of the jurisdiction conferred by Article 199 if a person performing functions within the territorial jurisdiction of this Court is allowed to act contrary to the law. Any other view of the matter will mean that this Court can suffer double standards and public functionaries located within our territorial jurisdiction can come to us with two faces. The precise number of instances in which this Court may feel embarrased to exercise this jurisdiction under Article 199 cannot be foreseen but what will happen to the grievance of a person if he was to challenge a law made by the Central Legislature for compulsory acquisition of land in tribal areas without making any provision for compensation. What will happen if a person was to feel aggrieved by a Regulation issued by the Governor which Regulation he could not issue under the Constitution. What will happen to the grievance of the person who though belongs to a tribal area, has a dispute as respect his property to the Settled Area. What will happen to a person who was to fabricate some documents in settled area with respect to some land situated in the South Waziristan.
23. In the fourth place, in Ihsanullah and others v. Commissioner, F. C. R., Peshawar no reference was made to earlier rulings of the Supreme Court. Rather it seems to us that in Jamil Ahmad v. The State the pronouncements of the Court in Pio Gul v. The State and Sar Khan v. The State were referred to without disapproving the law laid therein. As a matter of fact the two rulings were distinguished. Again in Abdul Rahim etc. v. Home Secretary, West Pakistan the two rulings in the cases of Piao Gul and Sar Khan have been cited with approval. The discernible feature in the two sets appears to be the situs or the location of the corpus of the dispute. For the reason it would be permissible to infer that where action has been taken in a criminal matter at a place within the territorial jurisdiction of the High Court, the High Court will certainly have jurisdiction to interfere and examine the legality of that action. In other words, the rule of decision in civil disputes affecting property in tribal areas is on altogether different plane.
24. In the fifth place in the case of detention which is continuing wrong how can this. Court in the exercise of its jurisdiction under Article 199 permit the illegal detention whenever such an infraction is brought to his notice on the ground that the grievance originally dates back to a time when this Court had no jurisdiction. Any other view will mean that all a person in such a situation will have to do is to withdraw his Writ Petition which was pending before enlargement of this Court's jurisdiction and to file a new petition.
25. In the last place, there is no vested right in procedure and a procedural law applies to pending cases unless such cases are expressly excluded.
26. As a result of the foregoing discussion, we dismiss this writ petition with no order as to costs.