Dost Muhammad Khan, J.--Through this constitutional petition, the petitioner has questioned non-bailable warrant of arrest issued against him by Respondent No, 1 (APA Bara, Khyber Agency) in a case/complaint filed by Respondent No, 2 (Janat Gul). Petitioner has also questioned the jurisdiction of the Respondent No, 1 in the subject-matter.
2. In view of the order of the Court dated 20.4.2006, Respondent No, 1 (APA) Mr. Safirullah Khan appeared and produced the original record.
Arguments heard and recorded perused.
3. The perusal of complaint/application filed by Respondent No, 2 would show that he is claiming an amount of Rs, 5,00,000/- (Ruees five lacs) being due against the petitioner and without praying for the recovery of the amount or any other legitimate relief, he has prayed for the issuance of warrant of arrest. against the petitioner, a resident of Peshawar.
4. The application/complaint was sent to the Political Tehsildar. After recording the statement of the complainant (Respondent No, 2) the Political Tehsildar re-submitted the file to the APA, who without any judicial satisfaction as required under Section 8 of the F.C.R., 1901 issued notice against the petitioner and took cognizance in this manner. After repeating the notices to the petitioner when he did not appear, Respondent No, 1 (APA) issued non-bailable warrant of arrest and the petitioner was thus arrested but was released on bail by the learned Additional Sessions Judge, Peshawar on 7.11.2003.
5. Initially, the application/complaint was filed under Section 419/420 PPC without showing the facts constituting such offences but the most astonishing and shocking aspect of the matter is that the APA (Respondent No, 1) without any prayer converted the complaint to a civil suit and switched over from criminal jurisdiction and assumed civil one in the matter assigning no reason whatsoever. Despite assumption of civil jurisdiction, the subject-matter has been described up to the last order-sheet dated 30.8.2005 as a complaint and not a civil suit.
6. After the sudden shift, taken in the course of judicial proceedings without lawful authority, the petitioner was chased by means of different processes issued by the APA (Respondent No, 1) and the last notice in this regard was published in the press with a direction to the petitioner to appear before him. The petitioner when could not appear, an ex-parte decree was passed on 16.6.2005 for the recovery of the above stated amount against him which was converted into execution proceedings and again warrant was issued against the petitioner which has been questioned in this petition.
7. The petitioner has squarely denied of receiving any amount from Respondent No, 2 (Janat Gul complainant at either within the tribal area or in the settled area. The complainant has also not annexed any thing in black & white to show that the parties have had any such transaction inter se in the past anywhere.
8. The Frontier Crimes Regulation (Regulation No, III) of 1901, was promulgated by the Britishers, the then alien masters of the Sub-Continent, for achieving their own objects which they thought expedient at the relevant time.
9. According to Clause 3 of Section 1, it has been made applicable to the area specified in the 3rd schedule and has also empowered the Governor to exempt an area from the operation of any of its provision. At different successive stages, different areas/districts specified in the 3rd schedule were excluded from the operation of the Regulation and at present the said Regulation is in vogue only in the tribal area or some of the Frontier Regions adjoining the tribal areas and does not extend beyond those frontiers.
10. For the resolution of civil disputes, Section 8 of the Regulation provides a clear procedure while Section 11 of the same provides procedure for dealing with criminal references. In both the provisions, it has been made mandatory for the Political Agent/Deputy Commissioner to refer the dispute to the Council of Elders. In the instant case Section 8 is relevant and to understand the true import, of the same, it is reproduced below:-- "8. Civil References to Council of Elders.--
(1) 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 after making such 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.
(2) The order of reference made under sub-section .(1) shall state the matter or matters on which the finding of the Council of Elders is required.
(3) On receipt of the finding of the Council of Elders under this section, section, the Deputy Commissioner may--
(a) remand the case to the Council for a further finding; or
(b) refer the case to a second Council; or
(c) refer the parties to the Civil Courts; or
(d) pass a decree in accordance with the finding of the Council, or of not less than three-fourth of the members thereof, on any matter stated in the reference; or
(e) declare that further proceedings under this section are not required."
11.Similar procedure has been laid down by Section 11 of the Regulation with the only exception that the Council of Elders nominated by the Deputy Commissioner and the names of the members so nominated be communicated to the accused persons and the accused will have right of objection which shall be recorded and the Deputy Commissioner may in his discretion either accept or reject the objection but while rejecting the objection he shall have to record reasons for doing so.
12. Under the provision of Section 8 of the FCR, it has been made limperative pre-condition for the Deputy Commissioner that before taking cognizance he shall judicially satisfy himself about the existence of serious and bona fide dispute between the parties which, is likely to cause blood feud, murder, culpable homicide not amounting to murder, mischief or breach of peace or in which either or any of the party belong to a frontier tribe. The Deputy Commissioner/Political Agent act as a Tribunal and i jurisdiction is fully dependent on the existence of these facts/conditions, the absence of which it will have no jurisdiction to take cognizance either of civil dispute or of an offence. Similarly, the PA/APA have no jurisdiction decide the dispute himself or to pass an order or decree without comely with the mandatory provision of referring the dispute to the Council Elders.
13.It is fundamental principal of law and justice both that Tribunal having jurisdiction to decide a particular matter, it shall decide to same according to law as it has no jurisdiction to decide it in contravention of any law. Any wrong decision by it would suffer from jurisdiction defeats and would be in disregard of law as held by the Hon'ble Supreme Court the case Utility Stores Corporation of Pakistan Limited vs. Punjab Labo, Appellate Tribunal (PLD 1987 SC 447).
14.In the instant case, the APA assumed jurisdiction albeit without judicial satisfaction under Section 11 treating the application of Respondent No, 2 (Janat Gul) as complaint for crimes under Section 419/420 PPC but a latter stage he made a somersault and laid hand on Section 8 treating to criminal complaint a civil suit and without referring the case to the Council of Elders passed an ex-parte decree and that too, without any proof muchle legal and tangible one. If at all he was of the view that no crime, case/offence was constituted from the facts mentioned in t application/complaint, the only legal course open to him was to has dismissed the complaint as under no circumstances he had any left authority under the (FCR) to quit the criminal jurisdiction and assume to other one under Section 8 of the FCR at his whims and pleasure.
15.We have noticed with serious concern in more than one case where the Political Agents of the Tribal area had carelessly assume jurisdiction on such unfounded applications without making any satisfaction as to whether they had the jurisdiction in the matter or not and the whether the cause of action accrued to an applicant was within the territorial jurisdiction. Such unfettered exercise of their quasi judice functions on their part has encouraged unscrupulous persons of the trial areas by illegally dragging citizens of the settled area to the tribal area. Even the Framers of the Regulation have provided enough safe guards against such practice but unfortunately the Political Agents conveniently ignore pre-requisites/conditions and readily assume jurisdiction in matters who apparently do not fall within their domain.
16.Under the provisions of Section 86-A Cr.P.C. further safe guard are provided against the removal of a person to the tribal area arrest under the warrant of the Political Authorities as the person so arrested so have to be produced before the Illaqa Magistrate who has to I inquiry/trial and if he is judicially satisfied from the evidence produce before him raising strong and probable presumption that the person wanted the Political Authorities has committed offence mentioned in the warrant arrest then the removal of the arrested person to the tribal area is to be authorized by him. In many cases the "Political Khasadars" intrude into the Lttled area and whisk away the required person to the tribal area. Such a active is undoubtedly illegal rather would constitute an offence of sapping and abducting of a person from the settled area to the tribal area is an undeniable fact that once a person is taken from the settled to the tribal area, he is lodged there in the lockup for indefinite period unless the fount sought by the complainant is recovered from him which amounts to coition.
17. The objection of the learned counsel for Respondent No, 2 Janat Gul complainant) that this Court in view of Article 247(7) of the constitution has no jurisdiction with respect to the subject- matter pegnizance of which has been taken by Respondent No, 1, is entirely amenable. True, that Respondent No, 1 (APA Bara Khyber Agency) resides id performs his function beyond the territorial jurisdiction of this Court at the illegal and unlawful warrant of arrest issued against the petitioner is being executed within, the territorial jurisdiction of this Court. An imminent threat of arrest to the petitioner has been caused, the effect and impact of the der is thus felt here and the impugned order of arrest is being given effect within the territorial jurisdiction of this Court. Therefore, this Court has the audition to strike down the same or to restrain the local authority from Le execution of such warrant who are functioning within the jurisdiction of List Court. Not only, under the provision of Chapter-I Part-II of the constitution of 1973, liberty, security, dignity and freedom of a person has been fully secured and guaranteed but also under the charter of human thoughts this Court has constitutional obligation to jealously safe guard such condimental rights against any invasion and could competently step-in in such a case.
In the case of Abdul Ghani and another vs. Subsedar Shoebar Khan company and others (PLD 1968 SC 131), the Hon'ble Supreme Court held be following views:-- "(b) Frontier Crimes Regulation (III of 1901), Sections 8, 20 and 60. Provisions of Sections 8 &.20 do not confer on Deputy Commissioner any power "to try and determine suit"--Hence summons issued under 0. V, R. 1 CPC in form as given in Appendix B No, 1 in First Schedule to C.P.C. calling upon party to attend on particular date "to answer all material questions relating to suit" and further stating " in default of appearance.... the suit will be heard and determined in your absence"--Held, without jurisdiction--Assistant Political Officer exercising powers of Deputy Commissioner issuing such summons--Acts in excess of statutory powers--Such action taken or order passed under Regulation in excess of statutory powers--Open to corrective procedure of writ jurisdiction-- Mandamus issued to Assistant Political Officer to withdraw and/or cancel the summonses".
The Frontier Crimes Regulation, 1901 provides by its Section 8(1) for reference of certain civil disputes, which if unsolved, are likely to lead to bloodshed or disturbance of peace or which involve parties belonging to 'Frontier tribe' to a Council-of-Elders "requiring the Council to come to a finding on the matters in dispute after making such inquiry as may be necessary and after hearing the parties". Then, sub-section 8(3)(d) empowers the Deputy Commissioner 'to pass a decree in accordance with the finding of the Council'. Further, under Section 20 he "may exercise all or any of the powers conferred by the Code of Civil Procedure and the Code of Criminal Procedure, 1898, respectively, as the case may be, for the purpose of compelling the attendance, before himself or the Council-of-Elders, of the parties, and witnesses, or any of them, in any case and at any stage of the proceedings". It will, however, be too much to suggest that either Section 8 or Section 20 confers on him any power to try and determine a suit. Hence where in a civil proceeding, instituted under Section 8 of the Regulation, by a resident of Tribal Area (North Waziristan), the summonses issued to the defendants residing at Lyallpur (West Pakistan) clearly stated that the person concerned was required to attend on a particular date in person or by Vakil "to answer all material questions relating to the suit", that the day fixed for his appearance "is appointed for the final disposal of the suit" and that he "must be prepared to produce on that day all the witnesses upon whose evidence and all the documents" upon which he intended to rely in support of his defence, it was held that the issue of such summonses was without lawful authority, Such summonses it was held, are issued under Order V, Rule 1, of the Code of Civil Procedure by the Court which is going to try and determine the suit. Neither Section 8(1) nor Section 20 gives such power of trying and determining a civil suit to the Deputy Commissioner. 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 power. Muhammad Akram v. The State PLD 1963 SC 373 cannot be cited as an authority for challenging the High Court's power to issue writ in a case in which an officer has acted in excess of his statutory powers.
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 upon him by the statute. If he acts within his power, Section 60 will operate as a bar to the jurisdiction of the Court, but when he acts in excess of his power, his order is susceptible to interference by the High Court in its writ jurisdiction.
In the circumstances, therefore, the Supreme Court ordered issuance of directions in the nature of mandamus to the Assistant Political Officer and A.D.M. to withdraw and/or cancel the summonses and refrain from giving effect to them or taking any action in pursuance of them.
18. The FCR has been the subject of sever criticism not only by the Superior Courts and the residents of the settled area of the country but a strong voice has been raised against this black law by the majority of the peoples of the tribal areas themselves because it is not only misapplied but also frequently misused by the functionaries of the State preforming their dues within the tribal areas and exercising jurisdiction there under with shut eyes and for this very reason a Committee headed by Hon'ble (Rtd.) Judge of the Hon'ble Supreme Court has been constituted to bring it in conformity with the law of the land so that fundamental rights of the peoples residing within and outside the tribal areas are safe guarded and guaranteed. For the above stated reasons, this petition is allowed and the warrant of arrest issued by Respondent No, 1 to effect the arrest of the petitioner is declared to be the result of illegal exercise and assumption of jurisdiction, therefore, is declared without lawful authority and without jurisdiction. The local authorities including the local police are hereby restrained from giving effect to or executing the said warrant of arrest impugned in this petition in any manner whatsoever.