ROOH-UL-AMIN KHAN, J.---This writ petition has been filed by the petitioner with the prayer that the compensation of the deceased be enhanced from Rs,100,000 to the tune of the Diyat amount, A notified by the Federal Govt. In the year 2005 and be declared the orders of the three lower fora under the FCR, as against law and injunctions of Islam.
2. Brief facts of the case as per contents of the writ petition are that on 14-7-2005 at about 1100/1200 a.m. Two persons namely Attiqur Rehman and Ehsanullah, both Marwat by caste, residents of Dalu Khel, Lakki Marwat were coming from Miran Shah, North Waziristan Agency, towards Bannu in a Motorcar No,2308/BUB. When they reached at Khauja Khar Check Post F.R.
Bannu, they noticed that a Datsun Pick up having few persons, duly armed, chased them, overtook their Motorcar and blocked the road at Saidgi area on Bannu Miran Shah Road. They were forcibly made to sit in the Pick Up and took them to an unknown place. On receiving information the political Staff rushed to the spot to ascertain the whereabouts of the kidnapees. They were informed that one of the kidnapees, namely Attiqur Rehman in injured condition had made good his escape, from the clutches of the kidnapers, while the other person namely Ehsanullah Khan was shot dead in the Tribal Area, The Motorcar was also found parked on the Road side, which was taken into possession by the Political Staff. That as per statement of the injured kidnapee, namely, Attiqur Rehman, the armed persons kidnapped them to an unknown place, where they were kept for a few hours and on the same night, while the kidnapers were shifting them to some other hidden place in the hilly area, both' kidnapees tried to escape. During the scuffle, kidnapers fired at them, with which Attiqur Rehman got injured, while Ehsanullah died on the spot.
3. On the complaint of petitioner, the Assistant Political Agent FR, Bannu directed respondents Nos.4 to 6 to trace out the kidnapers as the offence was committed due to their gross negligence, contending that as to why respondents Nos.4 to 6 opened gate of the picket to the kidnapers and they are also responsible for the safety of the Road in their respective areas. The Assistant Political Agent, FR Bannu through letter dated 16-9-2005 informed the Secretary to Governor (Security)
FATA, Governors Secretariat Peshawar through a special report about the proceedings. The Assistant Political Agent thereafter initiated proceedings under Frontier Crime Regulations, 1901 and constituted "a Sarkari Jirga", who vide order dated 17-12-2005, proposed to impose a fine of Rs,1,20,000 collectively upon respondents Nos.4 to 6, as per details given below:--
(I) Picquet Saidgi Bakka Khel Rs,50,000
(2) Picquet Lower Shinkai Bakka Khel Rs,40,000
(3) Picquet Gurbaz Bakka Khel Rs,30,000
4. The Jirga further recommended that Rs, 40,000 will be paid to the legal heirs of the deceased Ehsanullah and Rs, 20,000 will be paid to injured Attiqur Rehman, while the remaining Rs, 60,000 will be deposited in the Government Treasury. The Assistant political Agent, being Chairman, agreeing with the findings of the Jirga passed the order, in above proposed terms.
5. The petitioner filed appeal before respondent No,2, who vide order dated 2-2-2006, modified order of the Assistant Political Agent, to the extent that the legal heirs of the deceased should be paid Rs,80,000. Still feeling dissatisfied with the said order, the petitioner filed revision petition before respondent No,1, which was decided vide judgment dated 21-5-2007, whereby the compensation for the legal heirs of deceased was enhanced from Rs,80,000 to Rs,1,00,000. The petitioner seeks indulgence of this Court for enhancement of the amount of compensation from Rs,1,00,000 to the extent of the prevailing diyat amount.
6. Without going into the merits of the case, it is pertinent to mention here that admittedly the offence has been committed in the Federally Administered Tribal Area. The entire proceedings have been conducted by the Political authorities under FCR, 1901. It is also an admitted fact that the case has lastly been decided by the Tribunal FCR Peshawar. Historically the Tribal Areas have always remained outside the domain of the Judicial system applicable in the adjacent Settled Area. Presently Federally Administered Tribal Areas and FRs, in view of their Special Constitutional status are excluded from the jurisdiction of the High Courts and Supreme Court. The Judicial System in the Federally Administered Tribal Areas, hinges on the Troika of Jirga System, the Political Agent and Frontier Crimes Regulation of 1901. In all Criminal and Civil disputes two systems are followed i.e, "Riwaj" and "Sharia". The Political Administration takes cognizance of those offences, which are committed in the Protected Areas and does not generally interfere in the offences occurring between Tribes in the Tribal Territory, unless State interest is involved.
7. Individual trivial matters are settled by the Tribesmen themselves without the aid or assistance of any outside Agency. Proceedings in the Civil as well as in Criminal cases always conducted through Sarkari Jirgas. This type of Jirgas consists of groups of elders designated by the Political Agent or Assistant Political Agent, who are required to give findings about the guilt or innocence of accused in a Criminal cases or Civil disputes.
8. During the days of pre-partition the country was governed by the Government of India Act, 1935 and on emerging of Pakistan on the world map, the Constitutional arrangement of the country was governed by the same Act. Sections 91 and 92 of the Government of India Act, 1935 dealt with the affairs of Tribal Areas and defined them as "Excluded Areas". The act ibid was replaced by the Constitution of Pakistan 1956; which was subsequently succeeded by the Constitution of 1962.
Articles 104 and 218 of the former, while Article 223 of the latter, dealt with the matters and affairs of the Tribal Areas of Pakistan. After abrogation of the Constitution of 1962, the next basic law of the country was the Constitution of 1973, which, was unanimously adopted by the National Assembly in 1973 and still holds the field. Articles 246 and 247 of the Constitution of the Islamic Republic of Pakistan 1973, dealt with the matters relating to Tribal Areas. Article 247(7) barred the jurisdiction of Supreme Court as well as of High Courts in relation to the matters of Tribal Areas, unless Parliament by Law otherwise provides. In the instant case, the occurrence has taken place in the Federally Administered Tribal Areas, where the jurisdiction of this Court is not extended and specifically excluded by the Constitution of the Islamic Republic of Pakistan, 1973. The question of jurisdiction of his Court as well as of august' Supreme Court of Pakistan, came before the august Supreme Court in case titled "Qaum Bangash and others v. Qaum Yuri and others" (1991 SCM R 2400), which was replied in the following words:-- "As regards the arguments that Federally Administered Tribal Areas from part of Pakistan, therefore they would be subject to the jurisdiction of the superior Courts, it is sufficient to state that under clause (7) of Article 247, the Constitution has been expressly excluded the jurisdiction of these courts in relation to the Tribal Area, unless the Parliament by law otherwise provides. As discussed above there is no Act of Parliament providing otherwise in respect of the Federally Administered Tribal Areas of N.-W.F.P. And the superior Courts did not exercise jurisdiction in such areas immediately before the commencing day of the Constitution. The contention is therefore devoid of merit."
The above quoted view was also followed by Supreme Court of Pakistan, in the judgment dated 13- 5-2010, passed in C.P. No,197 and 198-P of 2009, by holding that the jurisdiction of this Court is not extended to FATA. The relevant Para of the above said judgment is reproduced as under:-- "Clause (7) of Article 247 of the Constitution unambiguously excludes the jurisdiction of the Supreme Court and the High Courts in the matters relating to the Federally Administered Tribal Areas. The controversy regarding the extent, to which this jurisdiction is ousted, has been settled by the Court in case of "Qaum Bangish" (supra). In criminal matters, it has been held that the determining factor ousting jurisdiction of the High Court and the Supreme Court under clause (7) of Article 247 of the Constitution is the location of the commission of the crime. If committed in the Tribal Area, the jurisdiction of the Superior Courts would stand excluded. The legality or otherwise of an order passed by any forum exercising power under the FCR could have been examined by the High Court, only if it possesses jurisdiction. As held the High Court did not possess jurisdiction over trial under the FCR of crimes committed in the Tribal Area. If on the one hand the sentences on the three counts of imprisonment of 14 years have been ordered to run consecutively and the respondents feel aggrieved of the same, on the other hand, they have benefited from the trial under the FCR for being sentenced to only imprisonment after having been found guilty of murdering three young men. The impugned judgment of the High Court could not be sustained in law on another ground. The writ petitions were not maintainable when the respondents earlier writ petitions arising out of the same trial were dismissed on account of the bar contained under Article 247(7) of the Constitution."
9. For the foregoing reasons and deriving wisdom from the above cited, judgment of the honourable Supreme Court of Pakistan, this writ petition being devoid of any merit is dismissed, with no order as to costs.