WIQAR AHMAD. J.---Petitioners had brought the instant const itutional petition against order dated 28.06.2019 of the Court of learned Additional District Judge-II Bajaur , whereby their application for declaring respondent No. 2 as "Kushinda " and expelling him from the area of Sara Mena District Bajaur , was dismissed.
2. The parties belonged to village Saramena, Alizai, Tehsil Khar District Bajaur , which area had earlier been forming part of the Federally Administered Tribal Areas of Pakistan (hereinafter referred to as "FATA"). The petitioners belonged to the tribe "Aurank Khel" while respondents Nos.1 to 3 have been belonging to the tribe "Habib Khel" of the same area of Sara Mena. It was further contended in the writ petition that the parties had been engaged in a long drawn enmity resulting into blood feuds on a number of occasions. A total of seven (7) persons were stated to have been killed as a result of the enmities which also included four (4) persons from the petitioners' side. Their dispute had earlier been referred to a Jirga for conducting mediation between the parties according to the customs and traditions of the area. The Jirga through its decision declared respondent No. 2 namely Shah Zarin as Kushinda" from the area of Sara Mena for his entire life. Respondent No. 2 was stated to have violated the said verdict of the Jirga in the year 1998, which matter was complained and reported to the erstwhile FATA authorities.
An inquiry was stated to have been held in pursuance to the complaint and the Political Tehsildar passed an order on 22.08.1998 and held respondent No. 2 Shah Zarin liable to payment of Rs. one million for violation of the order of Jirga, vide his order dated 24.08.1998. Respondent No. 2 again violated the verdict of Jirga, in the year 2014 and he was ordered to be taken into custody vide order dated 07.05.2014 of the Office of Political. Tehsildar Khar Bajaur and sent to lock-up for further expelling him from the area of Sara Mena. Respondent No. 2 was stated to have made another effort for resettling in the area, therefore the petitioners again moved an application to the Political Tehsildar Khar in the year 2015, which was lastly transferred to the Court of learned District Judge Bajaur after merger of the area of FATA with the Province of Khyber Pakhtunkhwa in pursuance to 25th Constitutional Amendment. The said case was entrusted to learned Additional District Judge-II Bajaur i.e. respondent No. 4 herein, who vide his judgment/ order dated 28.06.2019 dismissed the same. Feeling aggrieved therefrom the petitioners have filed the instant constitutional petition with the following prayer; "It is, therefore, prayed that on acceptance of the petition in hand the order and judgment dated 28.06.2019 of the ADJ/IZQ-II, Bajaur , respondent No. 04 be declared void, illegal without jurisdiction and without lawful authority hence be quashed, the application of the petitioners be allowed and the respondent No. 2 be declared as "Khusinda" and hence be expelled from the area of Sara Mena, Distt: Bajaur as per decision of the competent authority under Riwaj of the area, Bajaur the then tribal area under the Federation of Islamic Republic of Pakistan.
And respondents Nos. 1 and 3 be also proceeded against as per law being abetto rs/facilitators of respondent No. 2.
3. Learned counsel for petitioners submit ted during the course of his arguments that with the repeal of Article 247 from the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution "), the regular system of civil and criminal ad judicature has been substituted for the earlier system, which is supposed to implement the orders passed and finalized in the erstwhile dispensations, therefore the impugned order refusing to implement the earlier order was a nullity in the eye of law .
4. We have heard arguments of learned counsel for petitioners and perused the record.
5. Perusal of record reveals that a Jirga between the petitioners and respondents Nos. 1 to 3 had been held which had decided that since the respondents' side had committed murder of one person more from the petitioners' tribe, therefore respondent No. 2 was declared as "Kushinda" and expelled from the village Sara Mena District Bajaur .
Respondent No. 2 was found to have violated the said verdict of the Jirga and to have come to his native village Sara Mena in the year 1998. The petitioners moved a complaint to the office of Political Tehsildar Khar District Bajaur , whereupon respondent No. 2 was fined in the sum of Rs. one million after verifying the factum of Jirga and its verdict from the concerned Jirga members. The relevant part of order dated 24.08.1998 of the Assistant Political Agent Khar is reproduced hereunder for ready reference; "The above report of P.T Khar and the statement of the Jirga member perused. It has been established that there was "Woola" between the parties and the same has now been violated by accused Hazrat Wali etc. They are therefore, liable to make payment of the "Woola" amount of Rs. 10,00,000/- (Ten lacs). P. T Khar to take immediate steps in consultation with the concerned Jirga members for recovery of the Woola fine and report progress within a fortnight."
Respondent No. 2 again felt nostalgic and made an attempt to resettle at his native village namely Sara Mena. The petitioners felt aggrieved once again and filed a complaint before the Political Tehsildar Khar, who referred the matter to a Jirga vide his order dated 04.02.2005. The Jirga accordingly submitted its report, whereafter the Tehsildar passed the order dated 10.04.2006. Relevant Para of the said order is reproduced hereunder for ready reference; "Keeping in view of the above situation, it is suggested that Niaz Muhammad and Sultan Zeb residents of All Jan may kindly be released on reliable sureties bonds while Shah Zareen party may kindly be retained in Khar lock-up until they deposited the fine amount imposed upon them and furnishing reliable sureties to the effect that Shah Zareen will be expelled from Saramena in according with Jirga opinion."
Yelling of respondent No. 2 compelled him again to make an attempt for resettling in his native village, which was found to be nonkosher for him and he was again arrested and sent to lock-up on 06.05.2014. It was further provided in the order that his incarceration was for the purpose of expelling him from the region. The order seems to have been accordingly implemented. The petitioners moved an application before the Political Agent Bajaur Agency (former) on 08.01.2015 alleging therein that respondent No. 2 have happened to be stubborn and obstinate and have again tried to resettle in his native village, which according to the petitioners, had given birth to the apprehension of repeat of the episode of earlier enmity that existed between the parties. The said application was pending before the political authorities when Bajaur Agency was merged into the province of the Khyber Pakhtunkhwa, whereafter the case was transferred to the Court of learned District Judge Bajaur in pursuance to the 25th Constitutional Amendment. The case was entrusted to the Court of learned Additional District Judge-II Bajaur on 25.04.2019. V ide impugned order dated 28.06.2019 the application of the petitioners was dismissed.
6. The Court of learned Additional Sessions Judge while disposing of the application of the petitioners had observed that the petitioners could not show any order of the. Court whereby the Jirga had been constituted. It could not be established also that after decision of the Jirga same had ever been submitted to the competent forum under the erstwhile dispensation of Frontier Crimes Regulation (hereinafter referred as "FCR"). The said Jirga had neither been sanctified nor had the decision ever declared as rule of the Court by any competent forum under the erstwhile FCR. The decision of the Political Tehsildar dated 24.08.1998 cannot be claimed to be such a decision, for the reason that Tehsildar had never been declared a Court for the purpose, under the FCR. The decision of the Tehsildar had not been in respect of the original award of Jirga but was for implementation of the original decision only. The learned Court have therefore rightly concluded in the impugned judgme nt that since no judgment of the competent Court of law had been existing in favour of the petitioners, therefore the decision of private Jirga between the parties could not be implemented.
7. Even if any judgment of the Court or verdict of Jirga passed under the erstwhile FCR existed in favour of the petitioners, same cannot be allowed to operate against the provisions of the Constitution. The Constitution being supreme law of the land was applicable to the whole of Pakistan including the erstwhile FATA, as it had been a part of Pakistan as defined in Article 1 of the Constitution. Distinguishing feature between the Test of Pakistan and the erstwhile FATA had been created by the provisions of Articles 246 and 247 of the Constitution. Article 246 of the Constitution defined the territorial contour of the areas that had fallen in Federally Administered Tribal Areas and Provincially Administered Tribal Areas, while Article 247 provided for administrat ion of the said areas. The said clauses cannot be construed to have been restricting the extent and operation of the Constitution in the areas comprising of erstwhile FATA. This is very much clear from Article 1 of the Constitution as it existed in the original Constitution. Fundamental rights were also available to the citizens of the State living in FATA as no exclusion had been provided in Article 8 and rest of the provisions of the Constitution contained in Part-II dealing with Fundamental Rights. In the Full Bench judgment of this Court in the case of "Abdul Bari and 2 others v. Director , Livestock, Dairy Development FATA and 2 others " reported as "PLD 2014 Peshawar 132, all the Hon'ble members of the Bench concurred regardin g the fact that the people of tribal area had been having the fundamental rights enshrined in the Constitution of Pakistan, like the people of the rest of Pakistan. The jurisdiction of the Supreme Court of Pakistan as well as this Court was not however extended to FATA under sub-Article (7) of Article 247 of the Constitution. So the fundamental rights were available to the citizens in FATA but the remedy for its enforcement was not available there. Now that the remedy has also been, fortunately , made available to the citizens of Pakistan living in FATA, no order of the Jirga or order of any forum established under the erstwhile FCR could be allowed to operate in derogation of the constitutional provisions.
8. Article 15 provides for fundamental rights of freedom of movement, etc. The said article being relevant in the present context is reproduced hereunder for ready reference; Article-15 "Freedom of movement, etc... Every citizen shall have the right to remain in, and, (subject to any reasonable restrictions imposed by law in the public interests), enter and move freely throughout Pakistan and to reside and settle in any part thereof'.
9. Respondent No. 2 had the fundamental right to remain in, enter and move freely throughout Pakistan including his native village Sara Mena. Customs like declaring somebody as "Kushinda" or expelling him from any of the territory has always been discouraged by the superior Courts of the land. Such practice or custom even if existed in the past cannot be allowed to operate in future in any manner , particularly , when it operates to abridge any of the fundamental rights of a citizens. The Hon'ble Apex Court in its judgment passed in the case of "National Commission on Status of Women through Chairperson and others v. Government of Pakistan through Secretary Law and Justice and others " reported as " PLD 2019 Supreme Court 218" observed as follows; "Thus as early as 1954 this Court was of the opinion that proceedings under the FCR were in no manner regarded as proceedings by a court of law or proceedings in justice, but were merely administrative proceedings having no similitude to the modern principles of dispensation of justice. The observations of Justice Cornelius in particular reflect that this Court was aware of the consequences that such a system would have on public confidence in the justice system and expressed his fear in this regard, nevertheless the constitutional bar to judicial review of the provisions of FCR under Article 247(7) of the Constitution prevented this Court from holding such legislation to be against the fundamental rights of the F ATA people having no or at best limited access to any judicial remedy ."
It has further been observed in the said judgment by the Hon'ble Supreme Court of Pakistan as follows; After the 25th Amendment, all the residents of the Province of KPK are similarly placed, there is no rational basis on which the people of FATA can be distinguished from the people of the rest of the province of KPK and thus the application of the FATA Interim Regulation to one part of KPK while the rest of the province enjoys the protection of the provincial laws is absolutely unjustifie d, grossly discriminatory and in contrave ntion of the fundamental right to equal protection.. Whether they be residents of FATA on one hand or of Peshawar or Mardan, etc. on the other , they cannot be discriminated against and any classification between them desp ite being residents of the same province, with no obvious or reasonably deducible distinction between them, will be arbitrary and against the recognized principles of natural justice and the rule of law. Thus, with the merger of FATA in the Province of KPK, by applying the ratio of Azizullah Memon's case (supra), it becomes expedient to ensure that all the residents of the Province of KPK (including the people of the erstwhile FATA) do not face any discrimination of the basis of their residential location and are accorded equal protection of the law, and their right to fair trial, access to courts and due process are secured.
The decisions of disputed questions on civil matters may be allowed through Jirga but such judgments of the Jirga in criminal matters, which are against the provisions of the Constitution, cannot be allowed to operate, what to talk of implementing the same. In the case of "Brig. Muhammad Bashir v. Abdul Karim and others " reported as "PLD 2004 Supreme Court 271 " the Hon'ble Supreme Court held as follows; "There is no cavil with the proposition that "so long as statutory bodies and execu tive authorities act without fraud and bona fide within the powers conferred on them by the Statute, the judiciary cannot interfere with them. There is ample power vested in the High Court to issue directions to an executive authority when such an authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner , the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party".
Similarly , in the case of "Government of Pakistan through Secretary Ministry of Interior and Narcotics Control (Interior Division) Board, Islamabad v. Muhammad Yasin, Sub-Inspector No. 525-L and others " reported as " 1997 PLC (C.S.) 606 ", the august Court observed as follows; "It is settled principle of the Constitutional Jurisdiction that it shall be made availab le in aid of law to issue writ. The High Court acts in aid of law and not to hamper the working of the agencies established by law ."
The petitioners have been seeking to invoke the writ jurisdiction of this Court for ordering the relevant authorities to implement a decision of Jirga which would have the effect of depriving the respondent from the exercise of his fundamental right guaranteed by Article 15 of the Constitution. Petition for issuance of such a writ is not maintainable at all.
10. For what has been discussed above, the petition in hand was found to be frivolous, non-maintainable and meritless, same is accordingly dismissed in limine .