1. ' MUHAMMAD KHURSHID KHAN, J.-The petitioner Noor Badshah has been convicted by the Deputy Commissioner, Kohat under section 411, Pakistan Penal Code read with section 11, Frontier Crimes Regulation, 1901 (Regulation III of 1901) (hereinafter to be referred as the Regulation), and sentenced to undergo rigorous imprisonment for a term of two years and a fine of Rs, 30,000, or in default to suffer rigorous imprisonment for six months more. Without exhausting the remedy under the Regulation, to challenge the said order in revision before the Commissioner, Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter called the Constitution), petition under Article 199 of the Constitution read with Laws Continuance in Force Order, 1977, for the issuance of a writ of habeas corpus has been filed alleging that the order of the Deputy Commissioner, Kohat (dated 15-2-1980) whereby the case was referred to a Council-of-Elders, and the order dated 4-3-1980 convicting the petitioner for the offence in question, were illegal and without lawful authority and he was, therefore, being unlawfully detained and was thus entitled to be set at liberty.
2. ' The material facts giving rise to this petition are not disputed and may be stated thus quite shortly: The petitioner belongs to Landi Khel Akhorwal, Darra Adam Khel, which is in Tribal Area and is at a distance of about 15 miles from Kohat. Some time in, or before, January, 1980, the Political Authorities of Kohat District received constant complaints from various quarters that electricity/Telephone wires were being cut from the settled area of Kohat District and taken to Darra Adam Khel for disposal where the same were being melted. The Deputy Commissioner, Kohat, also received secret information that Noor Badshah petitioner was actively involved in this business. Thereupon, he directed the Political Tehsildar, stationed at Kohat, to take timely action in the matter.
3. ' The Political Tehsildar, Kohat, proceeded to a place in Darra Adam Khel where the electricity/telephone wires were reported to have been stocked in huge quantity for melting purposes. He called upon the leading Maliks and Mohtabars of the area to discharge their territorial obligations upon which they accompanied him to the spot, After doing all that was required of him, the Political Tehsildar reported that with the active connivance of Noor Badshah petitioner, the stolen electricity/Telephone copper wires had been stocked at the spot in huge quantity for melting purposes. In consequence, a case under section 379/411/109, Pakistan Penal Code read with section 11 of the Regulation, was registered against Noor Badshah. He was then arrested and a car allegedly owned by him was also taken into possession as case property.
4. On the 14th of February, 1980, the Deputy Commissioner, Kohat made reference to a Jirga consisting of nine members including Miran Nasimal Haq, a Section 30 Magistrate, who was appointed as President of the Jirga. The Jirga was required to give findings on the following issues:
(1) Is the accused guilty of the offence by stealing the Electricity/telephone wires and thereafter melting the same in a place adjacent to his house.
(2) Is the car being used for this purpose.
(3) What part was being played by the accused in the commission of offence directly or indirectly.
5. After recording the evidence in the case as also after doing all that was required under the law, the Council-of-Elders recorded their finding on 28th February, 1980, holding the accused guilty of the offence under section 411, Pakistan Penal Code, read with section 11 of the Regulation. On receipt of the finding of the Council-of-Elders, the Deputy Commissioner, convicted the petitioner under section 411, Pakistan Penal Code read with section 11 of the Regulation and sentenced him as already indicated. This order of conviction as well as the earlier order of reference to the Council- of-Elders are now being complained of before us.
6. ' In the written statement put in on behalf of the Deputy Commissioner, Kohat, who is shown as respondent No, 1 in the petition, the impugned orders are sought to be defended on the ground that they were perfectly by legal and within the competence of the authority making them. A preliminary objection has also been raised in the written statement. It has been stated that since the petitioner belonged to Federally Administered Tribal Area, and the crime also took place there, this Court, under the Constitution had no jurisdiction to entertain the present writ petition much less was it competent to issue any sort of writ.
7. ' It is a feature of the case that the arrest of the petitioner, the order of reference to the Council-of- Elders by the Deputy Commissioner, the entire proceedings before the Jirga, its report, final order of conviction by the Deputy Commissioner, all were made at Kohat, which is not in Tribal Territory.
8. These proceedings were taken in the office of the Political Tehsildar, Kohat, which is commonly known as Political Sarai and is situate within the limits of Kohat Cantonment. Upon his conviction, the petitioner was committed to prison in Kohat and some time after was removed to the prison in Peshawar. The writ of the High Court is wholly operative in Kohat and Peshawar.
9. ' Before we enter upon a discussion of the merits of this petition, we have to deal with two preliminary objections raised by the Advocate-General Mr. Inayat Elahi appearing on behalf of the respondents before us. These objections have reference to the jurisdiction of this Court and the competency of the present writ petition.
10. ' As to the jurisdiction of this Court, it has been contended by the Advocate-General that the petitioner belongs to, and the stolen property was retained in a Tribal Territory, namely, Darra Adam Khel, clause (7) of Article 247 of the Constitution bars the exercise of jurisdiction by the High Court which provides that neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area unless parliament by Law otherwise provides. Provided that nothing in this clause shall effect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day. It was said that the offence under section 411, Pakistan Penal Code, having taken place in the Tribal Territory of Darra Adam Khel which is beyond the territorial jurisdiction of this Court, the mere fact that the rest of the proceedings have taken place at Kohat, would not confer jurisdiction upon this Court to interfere with the impugned orders. To support this conclusion the Advocate-General referred to, and relied on, Jamil Ahmad and another v. State and 5 others (1), Abdul Rahim and others v. Home Secretary, Government of West Pakistan and another (2) and Sherzada Khan v.
11. Commissioner (F. C. R.), Peshawar and 2 others (3).
12. We regret to say that the argument so advanced by the Advocate-General is one of form and without any substance in it. The authorities cited by him do not appear to us to bear the slightest resemblance to the facts of the present case. They proceeded on their own facts and are clearly distinguishable.
13. ' In the case of Jameel Ahmed v. The State. The precise questions for determination by the Supreme Court of Pakistan were, whether the writ jurisdiction of High Court of West Pakistan extended to the Tribal Areas and whether all impugned actions having been taken in Tribal Area were amenable to writ jurisdiction. It was held that this jurisdiction was not available in the Tribal Areas which in that case pertained to North Waziristan Agency and that the impugned actions having been taken in Tribal Areas were not amenable to writ jurisdiction merely because the impugned warrants in the case issued by the Assistant Political Officer in exercise of his powers as Magistrate 1st Class had been sent for execution to the District Magistrate, Mardan, which was undoubtedly within the territorial limits of the High Court.
14. ' In the case of Abdur Rahim and others v. Home Secretary to Government of West Pakistan, the position was that all material actions were taken in the Tribal Territory on the basis of the local custom having the force of law where the land in dispute was also situate. The final order sought to be challenged in that case was that of the Home Secretary West Pakistan, dated the 23rd July, 1964. It was held by the Supreme Court that the mere fact that the final order sought to be challenged in the case was that of the Home Secretary, West Pakistan, would not snap the relationship of the dispute with the Former State of Chitral and bring the matter within the writ jurisdiction of the High Court.
15. ' In the last case, the murder had been committed and the accused were charged and convicted under section 11 of the Regulation, in Malakand Protected area. It was held that the writ jurisdiction of the Peshawar High Court, prior to the enforcement of Act XXVII of 1973, did not run into tribal Territory and the conviction and sentence could not, therefore, be challenged in writ jurisdiction on the grounds that the conviction and sentence were confirmed at Peshawar and that the convict was lodged in Central Jail at Peshawar.
(1) PLD 1969 SC 344 (2) PLD 1974 SC 109
(3) PLD 1975 Pesh. 29 ' It would thus appear that the fact of the aforesaid three cases were entirely different from the one before us. In the case of Jameel Ahmed, the impugned actions had been taken in the Tribal Area and it was for this reason that it was held that these- were not amenable to writ jurisdiction merely because the impugned warrants in the case were sent for execution to the District Magistrate, Mardan. The case of Abdur Rahim pertained to a land dispute which was purely of a civil nature.
16. Again, all material actions in that case were taken in the Tribal Territory on the basis of the legal custom having the force of law where the land in dispute was also situate. In the case of Sherzada Khan, the murder had been committed and the accused was charged and convicted under section 11 of the Regulation in Malakand Protected area and that too, prior to 9-2-73 when the writ jurisdiction of the Peshawar High Court did not run into that Territory. In the present case, all the material actions, namely, the arrest of the petitioner, the order of reference to the Council-of-Elders by the Deputy Commissioner, the entire proceedings before the Jirga as well as its report and the final order of conviction by the Deputy Commissioner, all were made and carried out at Kohat which is not in the Tribal area. Upon his conviction, the petitioner was committed to prison in Kohat and sometime after was removed to the prison in Peshawar. The writ of the High Court is fully operative in Kohat and Peshawar. It would, therefore, follow that the facts of the case in hand are entirely different from those of the three cases referred to above.
17. ' The facts of the case in hand, to our minds, are closely similar to the case, Sar Khan v. The State (1).
18. In that case, the appellant was tried, convicted and imprisoned within territorial jurisdiction of the High Court (Peshawar) under section 11 of the Regulation although the offence was allegedly committed in Tribal Territory (Landi Kotal). It was held that the High Court in exercise of its powers under habeas corpus was competent to examine authority for imprisonment despite the fact that the source of authority was outside the territory and that the offence had been committed outside the jurisdiction of the High Court. In this authority the principle derivable from the case of Piao Gul v.
19. State (2), and from an earlier statement of the law on the subject contained in the case of Dosso (3), was also clarified for better application in future cases. It was observed by Cornelius, C. J., as he then was, that what he meant to say in the case of Dosso and Mohd. Khan 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 proceeding, 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. It was further observed that 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 High Court, and it was open to the High Court to examine under what authority the prisoner was being held. The same principle was applied to the case of Piao Gul where the position was that all the proceedings of the case were held at Peshawar and it was only for the pronouncement of judgment that the Political Agent took the case to Jamrud Fort where the writ jurisdiction of the High Court did not run. It was urged before the Supreme Court that since the judgment was announced at Jamrood Fort, a place in special area, and the warrant had also been issued
(1) PLD 1967 SC 149 (2) PLD 1960 SC 307
(3) PLD 1958 SC (Pak.) 533 ' from there, the writ of High Court did not run in respect of the case. This contention was repelled by the Supreme Court and it was held that the High Court possessed power in habeas corpus to examine the authority for the imprisonment of any person held in a prison in territories amenable to the writ jurisdiction of the High Court notwithstanding that the source of authority was, and the offence had been committed, outside that territory. Like the case before us, the whole proceedings in that case from start to finish, were held and the prisoner was confined in a place within the High Court's territorial jurisdiction. On the principle laid down by the Supreme Court in the said three cases, we must hold that the case before us is amenable to the writ jurisdiction of this Court.
20. ' It was next contended by the Advocate-General that even if all the material proceedings in this case are found having taken place at Kohat, it will not advance the petitioner's case as the proceedings must be regarded as having taken place in the Tribal Area because of the fact that they were carried out, from start to finish, in the Political Sarai which is always used for the disposal of matters pertaining to Tribal Area. According to him, the Political Sarai, although situate in the settled are of Pakistan, has to be treated as a part of the tribal territory for the purpose of all the proceedings and matters in relation to Tribal Area. On a question asked by one of us as to whether a cognizable offence committed in the precincts of Political Sarai, Kohat, would be cognizable by the local police and would be triable under the law prevailing in the settled area or by the Political Authorities under the Regulation, his reply was that it would be taken cognizance of under the Regulation by the Authorities empowered thereunder and not by the authorities concerned of the settled area. This argument not only runs counter to the law for the time being in force but is also contrary to the view taken, in such a situation, by the Supreme Court of. Pakistan in Piao Gut v. The State. We feel that this argument would not appeal even to a layman having a little common sense, and if accepted, it would lead to absurd consequences. By advancing this argument, the Advocate-General desires us to hold that an officer of the status of a Deputy Commissioner can convert a place forming part of settled area into Tribal Area by naming it as Political Sarai and can thus prevent the operation of normal law of the land in that area. This argument, we are afraid goes much too far and loses sight of the fact that such a change can only be made by the Parliament and that too by means of an appropriate legislation. In this context, reference may now be made in detail to the case of Piao Gul. He was convicted by the Political Agent of the Khyber Agency whose office is known as Khyber House and is situate within the limits of Peshawar Cantonment. All the proceedings of the case under section 8(2) and section 8(b), North-West Frontier Province Corps Law, 1941, were held by the Political Agent Mr. Faridullah Shah at Peshawar in his own office meant for this purpose, except that for the pronouncement of the judgment he took the case to Jamrud Fort in a Special Area. It was held that all the proceedings of the case having been held in Peshawar, the case was amenable to the writ jurisdiction of the High Court. It will thus be seen that notwithstanding the fact that the Khyber House was being used for proceedings in relation to tribal Areas, it was held by the Supreme Court that the proceedings of the case conducted there were amenabl to the writ jurisdiction of the High Court. In other words, the Khyber House was regarded as a part and parcel of the settled area and not that of a tribal area. That being so, the contention raised by the Advocate-General cannot be prevail.
21. ' While questioning the competency of the writ petition before this Court, the Advocate-General urged that when an alternative and adequate remedy is available to a suitor, he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a writ. He maintained that since in the present case an adequate remedy by way of revision to the Commissioner was available to the petitioner and he did not exhaust that remedy, the High Court should refuse to grant a writ to him. Support for this view was sought from Fazal Din alias Mian and others v. Commissioner, Peshawar Division and District Magistrate, Hazara (1). Controverting this position, the learned counsel for the petitioner contended that it was wrong to say that a person convicted under the Regulation has any remedy provided by the law and that sections 49 and 50 thereof do not afford any remedy much less an adequate, prompt and efficacious remedy to the condemned person. He went on to say that in such a situation, there was no bar for the condemned person to invoke the writ jurisdiction of this Court without approaching the Commissioner in the matter. To support his contention, he mainly relied on Abdul Baqi and others v.
22. The Superintendent, Cenetral Prison, Machh and others (2).
23. ' We have given our careful thought and dispassionate consideration to the matter and have come to the conclusion that the view point expressed by the Advocate-General cannot be maintained.
24. The position in the case cited by him was altogether different from the one before us. That was a case under the West Pakistan Criminal Law (Amendment) Act (VII of 1963) and an adequate remedy by way of appeal was provided in the Act. It was in those circumstances that the learned Judges of the High Court proceeded to hold that the remedy by way of appeal was an adequate, prompt and efficacious remedy available to the suitor. It was observed further that where an alternative remedy by way of appeal is not exhausted, the discretion to issue writ should not ordinarily be exercised and this power may be exercised in those cases where grave injustice may otherwise ensue. Since in the case before us, no remedy by way of appeal is provided under the Regulation, the said authority cannot be stretched to cover it. On the other hand, the authority cited by the learned counsel for the petitioner PLD 1957 Kar. 694 is on all fours with the present case.
25. That was also a case under the Regulation and the petitioners moved the High Court in its writ jurisdiction without filing revision, before the Commissioner. On an objection raised on behalf of the respondent, it was held by the learned Judges that sections 49 and 50 of the Regulation do not afford any remedy, muchless a remedy, which could be regarded as adequate, prompt and efficacious. In coming to this conclusion, reliance was placed on a ruling in Hamesh Gul v. The Crown (3), in which it was held by the learned Judges as follows :- "It may be mentioned that it is wrong that the person convicted under the Frontier Crimes Regulation has any remedy provided by the law. Sections 49 and 50 of the Frontier Crimes Regulation do not afford any remedy much less a remedy, which in order to restrict the powers of the High Court to act in the matter, should be specific, adequate, prompt and efficacious to the condemned person."
(1) PLD 1968 Pesh. 30 (2) PLD 1957 Kar. 694
(3) PLD 1955 Pesh. I ' Relying on this authority, therefore, we would hold that writ petition not barred by reason of the revision provided by section 49 of the Regulation and the same not having been preferred by the petitioner.
26. ' We now arrive at a stage where it becomes necessary to consider the case on merits. The case before the Court falls into two parts. The first relates to order of reference to Jirga by the Deputy Commissioner. The other part relates to order of conviction by the Deputy Commissioner and, therefore, to what might be described as completed proceedings. As regards the first part, the learned counsel for the petitioner strenuously contended that reference to the Jirga was illegal inasmuch as it also included offence under section 379, Pakistan Penal Code, which having been allegedly committed in the settled area of Kohat District could not be referred to Jirga under the Regulation for the obvious reason that the Regulation is not in force in the settled area of North- West Frontier Province. It is true that the offence under section 379, Pakistan Penal Code is said to have been committed in the settled area of Kohat District where the Regulation is not in force. It is also true that the offence of theft relate to the settled area and for reason of the Regulation not being in force G in the said area, the offence could not legally be referred to the Council-of-Elders under the provisions of the Regulation. This would not however, make any material differences. The offences under sections 379 and 411, Pakistan Penal Code, are two distinct offences. A person can be said to be guilty of the offence of theft (1) if be intends to cause a wrongful gain or wrongful loss by unlawful means of property to which. The person gaining is not legally entitled or to which the person losing is 'legally entitled as the case may be; (2) the said intention to act dishonestly is in respect of movable property, (3) the said property shall be taken out of the possession of another person without his consent; and (4) he shall move that property in order to such taking. The offence under section 411, Pakistan Penal Code is committed when a person dishonestly receives or retains any stolen property knowing or having reason to believe the same to be stolen property. It is thus plain that theft as defined be section 378, Pakistan Penal Code, and the receiving and retaining of stole property punishable under section 411, Pakistan Penal Code, are two distinct offences. Normally, the offence of theft is triable by the Court within whose jurisdiction it is committed while the offence of receiving on retaining the stolen property is ordinarily triable by the Court within whose jurisdiction the stolen property is received or retained. It is not denied that the offence under section 411, Pakistan Penal Code, in this case, the stolen property having been retained in a Tribal Area, was triable by the Jirga on a reference to it by the Deputy Commissioner.
27. Since this offer fell within the exclusive competence of the authorities under the Regulation and was quite distinct from the one under section 379, Pakistan Penal, Code, it's reference along with the latter offence would not render the whole reference void. In such a state of affairs, we feel inclined to the view that notwithstanding the inclusion of the offence under section 379, Pakistan Penal Code in the order of reference, the reference with regard to the other offence under section 411, Pakistan Penal Code, read with section 11 of the Regulation, could not be rendered void or illegal.
28. ' Adverting now to the second part, it may at once be stated that while arguing this aspect of the case before us, the counsel for the petitioner dwelt, in the first instance on the order of conviction which, according to him, was bad in law as having been based on an illegal reference to the Jirga and in the second place on the evidence which was described as wholly inadequate to warrant the conviction..
29. ' We have already made it clear that the inclusion of offence under section 379, Pakistan Penal Code, in the order of reference could not render the reference void with regard to the offence under section 411, Pakistan Penal Code read with section 11 of the Regulation. It cannot, therefore, be said that the reference in regard to the offence under the aforesaid sections was illegal. There was nothing wrong even with the order of conviction by the Deputy Commissioner because of the fact that the conviction was made under section 411, Pakistan Penal Code read with section 11 of 'the Regulation, and not under section 379, Pakistan Penal Code. The argument of the petitioner's counsel that the order of conviction was bad in law as having resulted from an illegal reference is, therefore, obviously misconceived.
30. ' This brings us to the consideration of the evidence produced before the Jirga and on which the conviction of the petitioner is based. It consists of the statements of eight Witnesses out of whom the testimony of four, namely, Malik Haji Gula Khan, Muhammad Gul peon, Mr. Khudad Khan Tehsildar and Malik Haji Mir Ghulam is very important from the view point of The matter under discussion. The first of them stated in most unequivocal words that on reaching the place where the stolen wires were reported to have been collected, the electricity and telephone wires in a very huge quantity were found and there was also a kiln for melting these wires. He added that the said place belongs to Noor Badshah. Almost to the same effect, is the statement of Muhammad Gul Peon. Mr. Khudad Khan Tehsildar, in addition to these facts, disclosed that the electricity and telephone copper wires found at the spot were stolen property which had been kept by the accused without any permit as also without any legal authority. The statement of Malik Haji Mir Ghulam supports the evidence so given by these witnesses. The accused-petitioner, it may be pointed out, refused to cross-examine the prosecution witnesses and thus their statements remained unchallenged. There is authority for the view that if a witness is not cross-examined, his statement stands admitted. In this connection, we need do no more than refer to the exposition of this subject in PLD 1967 Lah. 1138; PLD 1967 Kar. 233 and PLD 1969 Pesh.
118. It follows, therefore, that the evidence against the petitioner in respect of the offence for which he has been convicted was consistent and stands un-rebutted.
31. A reference may also be made to certain other facts and circumstances in support of the prosecution case. It is an admitted position that the machinery of Administration in this case was brought into motion by the constant complaints received by the Political Authorities some time in, or before, January 1980, that the electricity telephone wires were being cut from the settled area of Kohat District and taken to Darra Adam Khel for disposal where the same were being melted. When the Tehsildar accompanied by witnesses reached Darra Adam Khel, . Wazir Khan son of the petitioner resisted their attempt to inspect the spot and also threatened them with dire consequences. The Tehsildar and his companions ultimately succeeded in entering the place in question. There they found the wires in huge quantity and also noticed a kiln which was being used for the purpose of melting the same. The accused petitioner was not in a position to explain the possession of the wires said to have been stolen from the settled area. It is significant to note that several questions were put to the accused including the one having reference to dishonest possession of stolen property on his part while examined by the Jirga but he refused to answer the questions. In other words, he did not deem it necessary to account for the possession of the stolen property. It is, therefore, reasonable to conclude not only that he was in possession of the stolen property knowing or having reason to believe it to be stolen property but also that his possession of it was dishonest. In these circumstances, we are clear in our minds that the prosecution has been able to bring the guilt home to the accused petitioner. But even if it be assumed for the sake of argument that the evidence produced before the Jirga was L weak or meagre, it would not justify this Court in its writ jurisdiction to interfere. If any authority is needed in support of this view reference may be made to PLD 1957 Kar. 694 and PLD 1966 Pesh.
19. In the first of these cases, the view taken was that it was not proper for the High Court in its writ jurisdiction to set aside the verdict of guilty by Jirga under the Regulation merely on the ground that the case was of weak evidence or that the conviction was based on thin reasoning. In the second case, while dealing with various aspects of the matter, the learned Judges proceeded to hold that the conviction under the Regulation on evidence, however meagre, could not be called into question in writ jurisdiction.
32. ' For the foregoing reasons, there is no merit in this writ petition. We therefore decline to interfere with the findings against the petitioner and his conviction and sentence and dismiss the petition, with no order as to costs.