' NISAR HUSSAIN KHAN, J.---Through this common judgment, we propose to decide two writ petitions, bearing No, 633/2012 titled Fazal Karim v. P.A. Khyber Agency etc. And No, 997/2012 titled Ghulam v. Federation of Pakistan etc. , as common question of law and facts is involved in both these petitions.
2. Petitioner of W.P. No,633-P/2012 has challenged his conviction inflicted by Political Agent under Section 9 CNSA whereby he was convicted and sentenced to 10 years' R.I. With fine of Rs, one lac, or in default to suffer one year S.I. Vide order dated 5-12-2009. He has assailed his conviction on the ground that it is in violation of human rights, as such the same be declared as illegal and without jurisdiction.
3. Petitioner of W.P. No,997/2012, namely Ghufran has raised variety of questions in his petition wherein he has not only challenged the vires of the FCR but has questioned the jurisdiction of the Political Agent and superior hierarchy being not competent to try the offence under CNSA 1997 wherein he was tried under Section 9 CNSA and consequently convicted and sentenced to 10 years'
R.I. With fine of Rs,one lac or in default to suffer two years' S.I, vide order dated 23-11-2011.
4. Both the petitioners filed appeals and revisions against their convictions before the concerned hierarchy which were turned down.
5. Learned counsel for petitioners argued that the Political Agent is not competent to try the offence under the Control of Narcotic Substances Act, 1997 as he does not qualify the test of Special Court as provided under Section 46 of the ibid Act nor the Political Agent has been notified as Judge of the Special Court.
6. As against that, standing counsel for the State contended that the Control of Narcotic Substances Act, 1997 was extended to the FATA in 1998 and the Political Agent is competent to try the offence under the Control of Narcotic Substances Act, 1997. He maintained that the High Court in view of the bar contained under Article 247(7) of the Constitution of Islamic Republic of Pakistan, 1973, has no jurisdiction to interfere with the matters of Federally Administered Tribal Areas. He relied upon the judgment of the august Supreme Court in the case titled Additional Chief Secretary
(FATA) and others v. Piayo Noor 2014 SCMR 17.
7. We have given our anxious considerations to the arguments of the learned counsel for the parties and have gone through the record as well as the case-law on the subject with their valuable assistance.
8. The matter of competency of trial of offence under the Control of Narcotic Substances Act, 1997 by the Political Agent and hearing of appeal by the hierarchy came under consideration before this Court in W.P. No,1946/2009 decided on 15-12-2009 titled Hazrat Baz v. Government of N.-W.F.P. Etc..
While deciding the writ petition, this court upheld the objection of accused involved in the case of Control of Narcotic Substances Act, 1997 by holding that Political Agent or Jirga/council of elders cannot attain the status of Special Court as required under section 46 of the Control of Narcotic Substances Act, 1997. However, the same judgment was reviewed later on in Review Petition No,12 of 2010 decided on 9-6-2011 filed by the Government of N.-W.F.P.. During the course of hearing of the Review Petition, Notification No,F.12(3)-98-POB, dated 19-11-2009 was produced before the Court which was not referred earlier during hearing of the main writ petition. By virtue of this Notification, second schedule to FCR 1901 (Regulation No,III of 1901), was amended and after entry 2-B, addition of 2-C was made by virtue of which, offence punishable under the Control of Narcotic Substances Act, 1997, was inserted. Pursuant to this Notification, the schedule to the FCR was amended and offence under the Control of Narcotic Substances Act, 1997, was made triable by the authority who was competent to try the offence under the FCR. While the Control of Narcotic Substances Act, 1997, had already been extended by virtue of S.R.O. No,1295(1)198, dated 16-11-1998 in compliance with Article 247 (3) of the Constitution of Islamic Republic of Pakistan, 1973. It follows that this court has already held that the offence under the Control of Narcotic Substances Act, 1997, can competently be tried by the Political Agent and appeals/revision thereagainst shall lie to the same hierarchy.
Whereas jurisdiction of the High Court has been ousted in the matters of Federally Administered Tribal Areas by virtue of Article 247(7) of the Constitution.
9. In view of this Constitutional bar, neither the High Court nor the Supreme Court may entertain any matter pertaining to the tribal areas. This principle has time and again been settled and reiterated by the august Supreme Court. In this regard, reference may be made to Qaum Bangash and others v. Qaum Turi and others (1991 SCMR 2400), Shaukat Khan v. Assistant Political Agent, Landi Kotal, Khyber Agency and others (PLD 2002 Supreme Court 526) and latest in the line is Additional Chief Secretary (FATA) and others v. Piayo Noor (2014 SCMR 17). The other questions raised in the petition by Ghufran petitioner in W.P. No,997/2012 have not been pressed by the counsel for the petitioner and rightly so as the same have already been resolved by the larger Bench of this Court in W.P. No,1741 /2012 titled Abdul Bari v. Government etc decided on 4-4-2014 (PLD 2014 Pesh. 132).
10. For what has been discussed above, these petitions fail and are IC accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.