The learned counsel submits that Respondent No, 4, Haji Sher Zaman, son of Elam Din filed a complaint before Assistant Political Agent (APA), South Wazirastan alleging that in 1977 petitioner contacted Respondent No, 4 and agreed to act as a broker that he would sell busses of Respondent No, 4 to other people on the basis of commission. Respondent No, 4 in 1998 appointed petitioner, Muhammad Abdullah as his agent to sell the vehicles on hire purchase basis and through instalments. The Respondent No, 4, authorized petitioner to retain commission in every deal. The Respondent No, 4 claimed that he paid a handsome amount to petitioner to deal with the customers. According to Respondent No, 4, petitioner came to his native village in South Wazirastan, where he was paid more money at different times in 1998 which comes in total Rs, 18,85,000/-. Respondent No, 4 further alleged that he paid Rs, 11,60,000/- to petitioner for purchasing and selling the vehicles. According to Respondent No, 4, the said amount was paid to petitioner within the jurisdiction of South Wazirastan. According to him, Respondent No, 4 and his son, Salah ud Din gave copies of their identity cards to the petitioner. Subsequently, original identity card was also given to the petitioner by Salah-ud-Din, son of Respondent No,
4. Petitioner sold 34 vehicles on behalf of Respondent No, 4 in the area of Multan and Chishtian. The Respondent No, 4 finally claimed that total amount of Rs, 56,27,000/- was outstanding against the petitioner.
2. On the above facts, the Respondent No, 4 filed the complaint on 13.1.2004 before the APA.
Following the above the Assistant Political Agent issued non-bailable warrants on 4.7.2006. The petitioner was arrested in pursuance of the said non-bailable warrants. After arrest of the petitioner, he was produced before the learned Special Allaqa Magistrate, Lahore. The said learned Magistrate passed an order that petitioner be not removed to the tribunal area without fulfilling the requirement of Section 86-A, Cr.P.C. Thereafter, the case was assigned to Mr. Ali Abbas learned Magistrate, Lahore, who passed another order observing that the petitioner had to go to the tribal areas to appear before the learned APA. The petitioner was remanded to judicial lock-up to be taken to South Wazirastan. The said order was challenged before the learned Sessions Judge, who entrusted the same to the learned Addl. Sessions Judge, Muhammad Masood Bakhsh. The revision petition was dismissed on the ground that the proceedings under Section 86-A, Cr.P.C. were still going on. The learned Sessions Judge, Lahore directed that record be summoned from the Court of APA, South Wazirastan to complete the proceedings under Section 86-A, Cr.P.C. in Lahore, instead remanding the petitioner to South Wazirastan. Thereafter, the case was assigned to Mr. Hassan.
Ahmad, Judicial Magistrate, Lahore. The bail application was also filed before him. The learned Magistrate did not pass any order regarding prayer of bail of the petitioner, instead he passed the order as under: "As the warrant issuing Court is situated in Tribal Areas, so he is to be released from jail, but with direction to SHO P.S. Iqbal Town to get released accused from the jail and produce him before the concerned Area Magistrate for appropriate order on 29.12.2006 and if the warrants direct for taking of security, then will to take security of Rs, 500,000/- otherwise he would be produced before Areas Magistrate. Robkar be sent to SHO for compliance and information. Meanwhile, notice to complainant be also issued for 29.12.2006."
Following the above order, Mr. Abid Zubair, Judl. Magistrate vide his order dated 15.3.2007 dismissed the application of bail on the ground that order dated 28.12.2006 already required petitioner to be released from the jail. The matter was adjourned for recording of evidence of the complainant and his witnesses.
3. The above order of not granting bail by the learned Magistrate, bail application was filed before the learned Sessions Court which was entrusted to Mr. Muhammad Bakhsh Masood, ASJ. The learned Addl. Sessions Judge held that the learned Magistrate is strictly directed to get implemented its order in its letter and spirit and taken stern legal action against the said SHO under provisions of contempt act and also make necessary direction for registration of case under Section 155-C of the Police Order against SHO and make necessary arrangement for the release of the petitioner. With the above directions/observation the bail application was disposed of on 29.3.2007.
4. The order of 29.3.2007 was challenged by Respondent No, 4 before this Court in Criminal Revision No, 222/07, Sher Zaman vs. M. Mubashar Masood etc. This Court allowed the criminal revision setting aside the order of the learned Addl. Sessions Judge, dated 29.3.2007. The learned Magistrate was directed to complete the proceedings under Section 86-A, Cr.P.C. expeditiously. The order of this Court was challenged before the Hon'ble Supreme Court by petitioner in Crl. Petition No, 266-L/2007. The above mentioned criminal petition was dismissed with the following observations:-- "Now the case has been remanded to the Magistrate proceeding under Section 86-A, Cr.P.C. all the above questions, except of the vires, can be raised before the Magistrate 1st Class, Lahore or before APA, Wana, as the case may be, including the question of bail which is to be decided in accordance with Section 497 of the Cr.P.C."
5. Presently the issue before this Court in the instant writ petition is challenge to Annex-D and N.
Annex-D is a warrant of petitioner issued by Assistant Political Agent. Annex-N, is order date 15.3.2007 passed by the learned Judl. Magistrate 1st Class whereby he has held as under: "As far as contention for grant of bail and release of accused, Muhammad Abdullah is concerned, it is suffice that may learned brother namely. Mr. Hassan Ahmad, Judl. Magistrate Section 30, Lahore has passed order regarding release of the accused on 28.12.2006, hence the instant applicant for grant of bail or release of the accused has become, infructuous, hence, is hereby dismissed, being infructuous. Adjourned to 3.4.2007 for recording of evidence of the complainant and his witnesses."
6. The learned counsel for the petitioner submits that proceedings before the learned Magistrate are without jurisdiction as learned Assistant Political Agent had no authority to issue warrant of arrest in offences covered by Sections 406, 420, PPC read with Sections 8, 11,20 of Frontier Crimes Regulation ,(FCR). Similarly, the learned counsel submits that Section 8 of F.C.R. is also not attracted. The learned counsel submits that Criminal Amendment. West Pakistan ;Criminal Law, 1963 (Act-VII) of 1963 is applicable to P.A.T.A. instead of, F.A.T.A. The learned counsel for the petitioner in support of his contentions relied upon PLD 1958 West Pakistan Lahore* 1039, PLD 1958 West Pakistan Lahore 1953, PLD 1957 West Pakistan Peshawar 100, PLD 1975 SC 66, PLD 1957 West Pakistan Quetta 1 and PLD 1958 West Pakistan Quetta.
7. On behalf of Respondent No, 4, the learned counsel submits that proceedings under Section 86- A, Cr.P.C. are pending before the learned Magistrate. The learned counsel submits that unless proceedings under Section 86-A,-Cr.P.C. pending before the learned Magistrate are completed, the present writ petition could not be filed.
8. The learned Additional Advocate General, Punjab submits that proceedings under Section 86-A, Cr.P.C. are pending before the Judl. Magistrate and now the case is at stage of evidence. The learned Addl. Advocate General, Punjab refers to NLR 1994 Criminal Law Journal 394. On the basis of the above judgment, he contends that unless proceedings under Section 86-A, Cr.P.C. are not completed which are mandatory in nature, no further proceedings or action can be taken. He also refers to PLD 1995 Peshawar 118. In the said judgment it has been said that interference under the Constitutional jurisdiction is not allowed while proceedings under Section 86-A, Cr.P.C. are still pending. The learned Addl. A.G. refers to PLJ 1997 Peshawar (DB) 22, to argue that in the said judgment it is held that removal to the Tribal Areas of the accused shall depend upon the satisfaction of the Magistrate who is conducting proceedings under Section 86-A, Cr.P.C. That the accused has committed alleged offence and, therefore, required to be removed to the Tribal Area.
9. I have heard the learned counsel for the parties.
10. The learned counsel for the petitioner categorically submitted that he had objection to jurisdiction of the learned Magistrate .before whom the proceedings are pending under Section 86- A, Cr.P.C. According to him, the learned APA has no jurisdiction to try or entertain the complaint under Sections 406 and 420 PPC read with Sections 8, 11 and 20 of Frontier Crimes Regulation, therefore, under Section 86-A, Cr.P.C., the learned Magistrate is also incompetent to continue proceedings pending before him as he desires his jurisdiction stemming from the filing of complaint before the A.P.A. Likewise, according to the learned counsel, APA could not have issued- the warrants against the petitioner. In my view, in the presence of order of the Hon'ble Supreme Court of Pakistan, the above two matters cannot be decided by this Court during the pendency of proceedings before the learned Magistrate. For the convenience, relevant portion of the order of the Hon'ble Supreme Court is reiterated, now the case has been remanded to the Magistrate, proceedings under Section 86-A, Cr.P.C. on all the above questions except of the vires can be raised before the Magistrate Ist Class, Lahore or before the APA, Wana as the case may be including the question of bail which is to be decided in accordance with Section 497 of the Cr.P.C."
11. Under Section 86-A, Cr.P.C. the learned Magistrate, seized with the matter, is fully competent to record the evidence and hear the parties on all matters, in the manner he would have had competent if the original complaint has been filed before him. The learned Magistrate shall direct removal of the arrested person in custody only if he is satisfied with the evidence produced before him, and if it raises a strong or powerful presumption that the person arrested committed the offence mentioned in the warrant. During the proceedings pending before him he can even decide whether the penal proceedings mentioned in the warrant were rightly applied or not. Such powers are conferred upon the trial Courts. For further guidance a reference may be made to a judgment delivered by a Full Bench of this Court reported as Khizar Hayat vs. I.G.P., PLD 2005 Lahore 470. The Hon'ble Supreme Court even has allowed Magistrate to consider the question of bail under Section 497, Cr.P.C. Since a competent Court is already seized with the matter, the interference by this Court in Constitutional jurisdiction neither allowed nor warranted. For the above reason, this writ petition is dismissed.