' NASIR-UL-MULK, J.---The respondent is a permanent resident of Kala Khel, .Adam. Khel, Tehseel Bara, Khyber Agency. He was arrested on 25.6.2008 by the order of the ation that he was involved in kidnapping. Abduction and 'car lifting. On 12.3.2009 the Assistant Political Agent made an Order of Reference under Section 11 of the Frontier Crimes Regulation, 1901 (FCR) and referred the respondent for trial under Sections 365/400/401. PPC read with Section 40, FCR by the Council of Elders nominated with his prior consent. The Council was required to determine if the respondent was a member of a gang of criminals involved habitually in the commission of kidnapping for ransom, dacoities, murders and car lifting and that he lis a hardened and desperate criminal.
Earlier on 24.12 2008. The respondent had filed Constitution Petition No, 2100 of 2008 challenging his detention and trial under the FCR. Notice was given in the petition and after filing of comments by he Political Authorities pleading that the respondent was being proceeded under the Frontier Crimes Regulation. The Court dismissed the petition on 28.1.2009 being not maintainable, directing the respondent to approach the political authorities for redressal of his grievances. On 17.3.2009 the respondent tiled another Constitution petition (W.P. No, 569/2009) again challenging his detention in the said matter, without making any reference to the dismissal of his earlier writ petition. This time his Constitution petition was partially allowed, the High Court admitted the respondent to bail on the ground that there was no material on record to show that the respondent was involved in kidnapping or other cognizable offences. This order of the High Court was impugned 'by the Additional Chief Secretary, Federally Administered Tribal Areas (FATA) and leave to appeal was granted on 25.3.2010 in the following terms:- "The respondent, who was arrested by the political authorities of Khyber Agency on the charge of ' kidnapping and other serious offences, was ordered to be released on bail by the Peshawar High Court vide impugned judgment. The case against the respondent was referred to Jirga under the law applicable in the Tribal Area. We have now been informed that the respondent has absconded and has not been appearing to face trial before the Jirga. The question as to whether in the circumstances of the case, the Peshawar High Court could exercise jurisdiction to order the release of the respondent on bail in a matter relating to the Tribal Area in view 'of bar contained in Article 247 of the Constitution, requires consideration."
2. The undisputed facts are that the respondent is resident of the Tribal Area and was being tried by the Council of Elders for various crimes mentioned in the Reference sent by the Assistant Political Agent under Section 11 of the FCR. The High Court had not in the impugned judgment, which is brief one, referred to any case-law on the point of jurisdiction of the Superior Courts in matters relating to the Tribal Areas. It is, therefore, necessary to take note of the relevant Constitutional provisions regarding jurisdiction of the Courts in such matters and the construction placed thereon. Clause 7 of Article 247 of the Constitution provides:-- "Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless [Majlis-e-Shoora (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."
3. The key words in the above Constitution provision are "in relation to a Tribal Area" which have been the subject of discussion before this Court and the High Courts. A provision similar to Article 247(7) was enacted in Article 223(5) of the 1962 Constitution. It came under examination in Abdul Rahim v. Home Secretary, Government of West Pakistan (PLD 1974 SC 109) in the following circumstances. The matter related to Chitral and arose out of an order passed by the Home Secretary, Government of West Pakistan in the year 1964. The order was impugned before the then High Court of West Pakistan and the petition was dismissed in limine on 22.3.1966, on the short ground that "the land in dispute being situate in the tribal territory' where the parties to the dispute are also residents, is not amenable to the writ jurisdiction of the High Court, notwithstanding the fact that the final order sought to be challenged was made by the Home Secretary to the Provincial Government who was located within the, territorial jurisdiction of the High Court." While maintaining the judgment of the High Court the following meaning was assigned to the expression "in relation to a Tribal Area"-:-- "This is not an expression of art like the expression "cause of action", which has a well-defined meaning and therefore, has a limited import. The words "in relation to on the other hand are of wide import and postulate of a connection of one thing with another: a nexus. The question therefore is whether there is such a connection or nexus between the subject-matter of the, dispute and the former State of Chitral. In this context the situs the land and the residence of the two sets of claimants become decisive. The location of the land in dispute and the residence of the parties plainly establishes this nexus or relationship for the relevant purpose."
4. A more elaborate criteria for the ouster of jurisdiction of the Superior Courts under Clause 7 of Article 247, while interpreting the expression in relation to a Tribal Area, has been laid down by Mr. Justice Amami Hay in Ch. Manzoor Dahl v. Federation of Pakistan (PLD 1975 SC 66) at page 134:- "Viewed in the context of this historical background and in the light of the special provisions contained in Clauses (1) to (6) of Article 247 for the governance of these areas, and also keeping in mind the salutary principle that the ouster of jurisdiction of the superior Courts is not to be lightly assumed, the plain meaning and intention of clause (7) appears to me to be to exclude the jurisdiction of the Supreme Court and the High Courts only in those matters which are exclusively concerned with tribal areas. Ordinarily, these would be matters involving property and inhabitants of these areas. Originating in events happening in these areas and governed by policies, laws, customs and usages pertaining to, and obtaining in- these areas. At best, the clause may be stretched to include matters arising in tribal areas, where, the parties to the dispute or any of them, may not ordinarily be resident in such areas, but happen to be present therein at the time of accrual of the cause of action. In such a case it is possible to regard the matter as being in relation to tribal area owing to the location of corpus of the dispute."
5. The question of jurisdiction of the High Court in the matters relating to the Tribal Areas in view of the bar contained in Article 247(7) of the Constitution once again came up in the case of Qaum Bangash v. Qaum Turi (1991 SCM R 2400). Brief factual background of the case is necessary in.
Order to comprehend the principle enunciated therein. The two sub-tribes, Qaum Bangash and - Qaum Turi of Kurram Agency, were locked in a dispute over shamilat which resulted in a firing incident where one person lost his life and three others sustained injuries. This gave, rise to civil as well as criminal litigation. As the parties belonged to Kurram Agency, a Federally Administered Tribal Area, where the disputed area was located and the incident of firing occurred, the Political Agent of Kurram Agency, with consent of the parties referred the cases civil as well as criminal, respectively. Under Sections 8 and 11 of the Frontier Crimes Regulation, 1901. (FRC). To the Council of, Elders. After necessary inquiries the Council of Elders submitted their recommendations which were accepted by the Political Agent. The matter was taken up by the aggrieved party before the Commissioner. F.C.R. (FR) Peshawar Division and then finally in Constitution petition before the Peshawar High Court. The High Court dismissed the petition. Leave to appeal was granted by 'this Court. Inter alia, consider the contention that "the jurisdiction of the High Court, extends to the tribal areas." The Court reiterated the principle laid down, in the case of Abdul Rahim v. Home Secretary, Government of livest Pakistan, (ibid) and its decision in Malik Taj Muhammad v. Bibi Jano (Civil Appeal No, 144 of 1981). The following passage was reproduced in the case:-- "In this case, the subject-matter of the dispute, was immovable property and rights therein. These were located in the tribal area The authorities which dealt with the matter were empowered to deal with such matters as pertaining to tribal areas. La the circumstances, the substantial cause of action and the subject-matter of dispute would be located in the Tribal Area and not in the settled area merely because such an order was passed."
6. The Court thus came to the conclusion that situs of the civil dispute between the two Tribes was located in the tribal area where the crime was also committed and the parties also belonged to the said area, the jurisdiction of the High Court was ousted under Article 247(7) of the Constitution notwithstanding that the office of the Commissioner where the final order was passed was located within the, territorial jurisdiction of the High Court. The argument advanced before the Court that the jurisdiction of the Superior Courts would extend to the Federally Administered Tribal Areas as it forms part of Pakistan was rejected on the ground that it was:-- "sufficient to state that under clause 7 of Article 247. The Constitution has expressly excluded the jurisdiction of these Courts in relation to the Tribal Area. Unless the Parliament by law otherwise provides."
7. The principle laid down in the case of Qaum Bangash and Qaum Turi was followed by this Court in Shaukat Khan v. Assistant Political Agent (PLD 2002 SC 526) and consistently reiterated. The case-law shows that the question of ouster of the jurisdiction of the High Court in relation to the .Tribal Areas had generally arisen in matters -before the Peshawar High Court and the High Court of Balochistan, perhaps on account of their close territorial proximity with the said Areas. Some of the referred judgments on the question of jurisdiction are Munawar Khan v. Political Agent, Khyber Agency Station [2012 M LD 503(Peshawar)], Nawab Khan v. Assistant Political Agent (PLD 2011 Peshawar 164), Murad Ali v. Assistant Political Agent, Landi Kotal [2009 YLR 2497 (Peshawar)],, ljaz Khan v. APA Barra, Peshawar (PLD 2006 Peshawar 180), Abdul Hanan v. Assistant Political Agent, Bara [1999 M LD 2661 (Peshawar)], Haji Qadar Gul v. Secretary to the Government of NWFP Home and Tribal Affairs Department, Peshawar [1999 M LD 840 (Peshawar)], Abdul Badshah v. Deputy Commissioner (PLD 1997 Peshawar 132), Haji Muhammad Sharif Khan v.S.D.M. [1997 M LD 152 (Peshawar)j, Haji Salim Khan v. Commissioner, F.C.R. Kohat Division, Kohat .[1996 CLC 1702(Peshawar) and Said Jamal v. Assistant Political Agent (F.R.), Kohat [1992 M LD 2043(Peshawar)j.
Recently the High Court of Balochistan in Syed Shamsuddin v. Government of Balochistan (PLD 2012 Balochistan 1.97) had elaborately examined the case-law on The subject. The High Courts have invariably refrained from exercising jurisdiction where found that the matter before it related to the Tribal Areas. However in some of the above cases reference has been made to the opinion of Mr. Justice Salahuddin Ahmad, as he then was, in the case of Ch: Manzoor Elahi v. Federation of Pakistan (ibid) regarding enforcement of fundamental rights by the High Courts and the Supreme Court in matters related to the Tribal Areas, notwithstanding the ouster clause of Article 247(7) of the Constitution. His lordship had at page 116 of the judgment observed:-- "Thus, the provisions of the Constitution regarding the Fundamental Rights and the jurisdiction of the Supreme Court and a High Court to enforce them are not controlled by Article 247(7). It would, indeed, be anomalous and absurd that while the arm of an authority in a Tribal Area is long enough to reach the person residing outside the area, the Supreme Court or a High Court is powerless to come to the rescue of a person whose Fundamental Right has been flagrantly violated within its own territorial jurisdiction."
' However, Mr. Justice Anwarul Hag in his opinion in the same case after giving a resume of the historical background of the Tribal Areas and upon examining the relevant provisions of the Constitution held:-- "As a result, it follows that the special jurisdiction to enforce fundamental rights would not be available in a case to which clause (7) applies in terms."
' His lordship however found on the facts of tharcase that since the detenue was resident of the settled area and arrested from his home, the matter did not fall exclusively within the Tribal Area.
The conflicting opinions regarding jurisdiction of the High Court to enforce fundamental rights in the matters falling under the exclusionary clause of Article 247(7) was taken note of by Mr. Justice Muhammad Yaqub Ali in the same case and decided not to express his own opinion on the question. On page 82 of the judgment his lordship observed:-- "The key words in clause (7) of Article 247 are "in relation to a Tribal Area". It has been rightly found by my learned brethren that the High Court of Sindh & Baluchistan has by virtue of President's Order 11 of 1961 and Act II of 1964 jurisdiction to issue writs in relation to Tribal Areas and that by virtue of the proviso, reproduced above, clause (7) of Article 247 has not taken away that jurisdiction. Salahuddin Ahmad, J. Has held that the High Court also has the jurisdiction to enforce Fundamental Rights. Anwarul Hag, J. Has held that as jurisdiction to enforce Fundamental Rights was never conferred on the High Court, neither President's Order 11 of 1961 nor Act II of 1964 has the effect of conferring that jurisdiction on the, High Court. The view I have taken bye-passes this controversy. I will not, therefore, express any final opinion on this issue."
' The Hon'ble Chief Justice Hamoodur Rahman, heading the Bench did not dilate upon the issue.
Hence, Ch. Manzoor Elahi v. Federation of Pakistan cannot be cited for the proposition that the High Court can assume jurisdiction under Article 199 of the Constitution in case a petitioner complains of violation 'of his fundamental rights when the matter otherwise falls within the ouster Clause (7) of Article 247. It may be noted that in Ch. Manzoor Elahi's case, the jurisdiction of this Court was invoked under Article 184(3) of the Constitution, 1973 and the question before the Court was whether the restoration of jurisdiction of the High Court and the Supreme Court in matters relating to the Tribal Areas of Quetta Division by the Act 2 of 1962 passed by the National Assembly Under the Constitution of 1962 would be considered as a valid resolution under the Constitution of 1973 or that any resolution under Article 247(7) would be required. 'The Court held that no further instrument was required for the continuation of the earlier resolution.
8. We have also noted, that, in judgments of the High Courts where reference has been made to the opinion of Justice Sallahuddin Ahmad in Ch. Manzoor Elahi's case, the petitioners were granted relief on other legal grounds and not on account of violation of their fundamental rights.
9. The foundation for the jurisdiction of the Courts has been laid down in Clause (1) of Article 175 of the Constitution. Couched in the negative term it declares "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." The Constitutional jurisdiction of the High Court is embodied in Articles 199 and 203 of the Constitution. Whereas the latter provision confers :upon it supervisory jurisdiction over the Courts subordinate to it, Article 199 empowers the High Courts' to issue writs of various forms under its original Constitutional jurisdiction. The said Article opens with the words "Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-". The expression "Subject to the Constitution" for the present purpose would mean subject to the ouster Clause (7) of Article 247.
Like Clause (1) of Article 175 Clause (7) of Article 247 also opens with the negative expression that "neither the Supreme Court nor a High Court shall exercise any jurisdictions". Thus where a matter relates to a Tribal Area, the jurisdiction of the High Court under Article 199 is ousted whether the grievance brought before the Court is based upon violation of fundamental rights or of any other law.
10. Having said that the law in the form of Section 86A, Cr.P.C. Provides safeguard against unwarranted arrest of a person in the settled area in execution of warrants issued by the. Political Authorities to face criminal trial in the Tribal Areas. It reads:-- "Procedure for removal in custody to Area. Where a person arrested under section 85 is to be removed in custody to any place in the Tribal Areas, he shall be produced before a Magistrate within the local limits of whose jurisdiction the arrest was made, and such. Magistrate in directing the removal shall hear the case in the same manner and have the same jurisdiction and powers as nearly as may be, including the power to order the production of evidence, as if the person arrested were charged with an offence committed within the jurisdiction of such Magistrate; and such Magistrate shall direct the removal of the arrested person in custody if he is satisfied that the evidence produced before him raises a strong or probable presumption that the person arrested committed the offence mentioned in the warrant'
11. In view of the above provision the High Court however is not barred from examining whether the provision of Section 86-A, Cr.P.C. Has been complied with where it is alleged that a person has been arrested in the Settled Area and transferred to the Tribal Area to face a criminal charge without producing him to the Magistrate. It, however, will be for the aggrieved person to show that he was arrested from the Settled Area. The jurisdiction of the Magistrate under Section 86-A, Cr.P.C.
Or for that matter of the High Court is limited to the question of arrest of a detenue. Where, however, the violation of Section 86-A, Cr.P.C. Is neither alleged nor established and the crime statedly is committed in the Tribal Area or where the subject-matter of the civil dispute is located in the said Area the jurisdiction of the High Court to ontertain petition under Article 199 is excluded.
12. The application of the principle enunciated above to the facts of the present case poses no difficulty. The respondent is a resident of Tribal Area .Where he statedly carried out criminal activities and thus the matter exclusively related to the Tribal Area from where he was arrested.
When jurisdiction of the High Court was excluded to examine the main criminal charge, as a corollary it was also not empowered to pass any interim order in the shape of grant of bail to the respondent. For such relief the respondent could apply only to the competent authority under the Frontier Crime Regulation.
13. ' Above are the reasons for our short order dated 23.5.2013 which reacts:- "For the reasons to be recorded later, this appeal is allowed and the impugned judgment of the learned High Court is set aside."
High Court Reversed/.