SHAH ZAMAN BABAR, J.--These three Criminal Revi-sions No, 214 of 1964, No, 3 of 1965, and No, 185 of 1970, are disposed of by a single judgment as a common point of law has cropped up therein. Criminal Revision No, 214 of 1964
2. On 18-8-64 at about 9 a.m. Khybermail Lorry No, P.R. 1418, driven by Umar Gul driver with Ahmad Gul conductor was checked at Jamrud.. Eighteen bundles of copper sheets concealed under false roof of the vehicle were recovered. Umar Gul and Ahmad Gul were tried by S. Jamil Ahmad, C.S.P., Political Agent Khyber, who by his order dated 29-8-1964, found both the offenders guilty of the offence under section 167(8) of the Sea Customs Act. Ahmad Gul was sentenced to undergo four months' R. I. while Umar Gul, as an abettor, was sentenced to pay a fine of Rs, 2,000 or in default to undergo four months' R. I. The copper sheets were confiscated to the Government.
Umar Gul and Ahmad Gul, Afridis Qambar Khel, have come up on revision to this Court under section 439, Cr. P. C. from the order dated 29-8-1964, of the Political Agent Khyber, acting as a District Magistrate.
Criminal Revision No, 3 of 1965
3. On 13-12-1964 the Frontier Constabulary personnel, acting on information, took positions from Kacha Garhi up to Narai Khuwar in the Khyber Agency. At about 9 p.m. a party of the constabulary personnel captured 20 buffaloes from Raza Khan and Muhammad Ashraf. Another party of the Frontier Constabulary personnel seized 20 more buffaloes from the possession of Hamzullah' Khan, Sultan and Muhammad Khan. Raza Khan, Muhammad Ashraf, Hamzullah, Sultan and Muhammad Khan were arrested. The captured 20 buffaloes and the five arrested accused were handed over to the Political Naib Tehsildar. . Bara on 14-12-1964. The five accused were tried for offences of attempt to smuggle the 40 buffaloes under section 167(8)(81) of the Sea Customs Act by S. Jamil Ahmad, C.S.P., Political Agent and District Magistrate, Khyber Agency, who by his order dated 19-12-1964, convicted all the accused for the offence, and sentenced each of them to suffer two months' R. I. and a fine of Rs, 2,000 or in default of payment of fine to undergo six months' R. I. each. The cattle were confiscated to the State.
Raza Khan, Muhammad Khan, Muhammad Ashraf, Hamzullah and Sultan residents of Sufaid Dheri, Tehsil and District Peshawar, have come up on revision under section 439, Cr. P._ C. Criminal Revision No, 185 of 1970
4. On 9.6-1970 Said Wali, Zakha Khel, was driving his Truck No, PRA 2032 from Peshawar. The truck was stopped near Takhta Bag barrier in Khyber Agency. On checking by the A. P. 0., Khyber and Khasadar Guard, 82 bags of wheat were recovered. Wazirzada Abdul Qayum Khan, Political Agent Khyber tried Said Wali, in a summary trial, on 10-6-1970 for an offence under section 167(8) of the Sea Customs Act. Said Wali was found guilty of the offence. He was convicted accordingly and sentenced to a fine of Rs, 3,000 or in default to undergo six months' R. I. The 82 bags of wheat were forfeited to the State.
Said Wali has come up on revision under section 439, Cr. P. C. from the order dated 10-6-1970, of Political Agent Khyber.
5. During the course of hearing of Criminal Revision No, 3 of 1965, on 8-1-1965, by Bashiruddin Ahmad, J., now Chief Justice, Peshawar High Court, Peshawar, two questions cropped up and were later on ordered to be referred to a Division Bench. The same two questions arose during the hearing of Criminal Revision No, 214 of 1964, by the same learned Single Judge on 25-2-1965, and as such this revision petition was also ordered to be heard along with Criminal Revision No, 3 of 1965.
6. The same questions arose in Criminal Revision No, 185 of 1970, and the learned Chief Justice by his order dated 7-7-1970, ordered this revision petition to be heard along with Criminal Revision No, 3 of 1965.
Question No, 1 : (This question has been modified by us) :- "Whether in view of the provisions in the present Constitution the right of appeal or right of revision, flowing from the right of appeal from a sentence of imprisonment less than a year, to the Judicial Commissioner (now High Court) provided by the Government of India Foreign Department in Notification No, 217-F, dated 13-4-1931, (published in the Gazette of India No, 16, Simla, Saturday, April 18, 1931, still Survives ?"
Question No, 2 : "Whether the Political Agent Khyber could still act as District Magistrate and take cognizance of the case under section 167(81) of the Sea Customs Act ?"
The relevant portions of Notification No, 217-F, dated 13-4-1931, connected with the point of law are reproduced below :- "THE GAZETTE OF INDIA No, 16 SIMLA Saturday, April 18, 1931 13-4- 1931 No, 217-F.--In exercise of the powers conferred by the Indian (Foreign) Order-in-Council 1902, and of all other powers enabling him in that behalf, and in supersessions of all previous orders on the subject, the Governor-General in Council is pleased to make the following orders for the application of enactments to the tract known as the Khyber Agency and over the said tract namely :- Part I--Application of enactments The enactments specified in the Schedule to this. Part shall apply to the said tract, in so far as they may be applicable thereto and subject to any amendment to which they are for the time being subject in British India ; provided that the said enactment with the amendment against the entry relating to Regulation III of 1901, as set forth in the schedule to this part as so applied shall be subject to any modification, necessitated by the provisions of Part II of these orders and to alteration not affecting the substance as may be necessary or proper to adopt them to the matter pending before any Magistrate or Court : - SCHEDULE Act XLV of 1860 The Indian Penal Code.
Act V of 1898 The Code of Criminal Procedure, 1898.
Act III of 1901 The Frontier Crimes Regulation, 1901.
Act IV of 1901 The Frontier Murderous Outrage Regulation, 1901.
1. Assistant Political Officer, Tehsildar and Naib-Tehsildars within the Khyber shall exercise within the said tract all the powers of a Magistrate of the 1st Class, a Magistrate of the Second Class and a Magistrate of the Third Class, respectively under the Criminal Procedure Code, 1898, as applied by these orders. The Political Agent, Khyber shall exercise within the said tract all the powers of a District Magistrate and Court of Session under the said Code, as so applied, and of a District Magistrate or Deputy Commissioner under the Frontier Crimes Regulation, 1901, as so applied. The Court of Judicial Commissioner North-Wet Frontier Province shall exercise all the powers of a High Court under the Code of Criminal Procedure, 1898 as so applied.
(C) An appeal shall lie to the Court of the Judicial Commissioner North-West Frontier Province in exercise of the powers under the Code of Criminal Procedure, 1898, as applied by these orders from any sentence of death or imprisonment for a term exceeding one year which is passed by the Political Agent Khyber whether in exercise of the jurisdiction of a Court of Session Judge or a District Magistrate under the said Code as applied. Save as aforesaid no appeal shall lie from any sentence passed by such Political Agent.
Question No, 2.
7. Under the above-quoted Notification (No, 217-F dated 13-4-1931) the Code of Criminal Procedure, 1898 (Act V of 1898), has been made applicable to Khyber Agency. In Part II of the said Notification, the Political Agent Khyber has been empowered to exercise within the Khyber Agency all the powers of a District Magistrate and a Court of Sessions under the said Code as so applied. The whole of the Sea Customs Act, 1878 (VIII of 1878) and the whole of the Land Customs Act, 1924 (XIX of 1924), have been repealed by section 220 of the Customs Act,1969 (Act IV of 1969). The Customs Act, 1969 has come new into force from the 1st of January 1970. Section 221 of the new Customs Act lays :- "221. Savings. --(1) Notwithstanding anything contained in section 6 of the General Clauses Act (1897), anything done or any action taken under the repealed enactments in so far as it is not inconsistent with the provisions of this Act shall without prejudice to anything already done or any action already taken be deemed to have been done or taken under this Act." In the the Superintendent, Laud Customs, Torkham (Khyber Agency) v. Zewar and 2 others , it has been held that Tribal areas are legally parts of territories of Pakistan and that Sea Customs Act, 1878 and Land Customs Act, 1924, are applicable therein. In view of this authority, we are of the view that the Political Agent could act as District Magistrate and take cognizance of the case under section 167(8)(81) of the Sea Customs Act or of the offences under the Sea Customs Act, 1969, the question is answered in the affirmative.
Question No, 1.
8. Under section 2 of the Establishment of West Pakistan Act, 1955, the tribal areas of the North-West Frontier Province became parts of West Pakistan. Article 242 of the Constitution of the Islamic Republic of Pakistan, 1962 (hereinafter called as the Constitution) has defined the tribal areas as under :- "Tribal areas" means the areas in the Province of West Pakistan, which, on the thirteenth day of October, One thousand nine hundred and fifty-five, were -- (a)the tribal areas of Baluchistan, the Punjab and the North-West Frontier ; and (b)...............................................
Article 1(2) of the Constitution provides :-- "The Republic shall consist of-- (a)the Province of East Pakistan and the Province of West Pakistan ; and (b)such other States and territories as are or may become included in Pakistan, whether by accession or otherwise.
Thus, in view of the definition of the tribal areas in Article 242 and the provisions of Article 1 of the Constitution, Khyber Agency is a part of Pakistan and West Pakistan. The West Pakistan was dissolved by Province of West Pakistan (Dissolution) Order, 1970 (President's Order No, 1 of 1970), hereinafter called as the President's Order, published in the Gazette of Pakistan, Extraordinary, 30th March 1970. This Dissolution Order was enforced from the 1st July 1970. Article 4 of the President's Order deals with the constitution of new Provinces and lays : "(1) As from the appointed day, the Province of West Pakistan, as it existed immediately before that day, shall cease to exist and there shall be constituted in its place four Provinces to be known respectively as (a) Baluchistan (b) the North-West Frontier Province, (c) the Punjab and (d) Sindh, and the following Centrally Administered Areas, namely :-- (a).......
(b)the Centrally Administered Tribal Areas.
(2) The territories of the new Provinces and the Centrally Administered Areas shall be as set out in the Schedule.
The Schedule to Article 4(2) provides :- "The North-West Frontier Province Territories of--
(a) Peshawar Division including former Amb State and Tribal Areas adjoining Hazara District but excluding other Tribal Areas.
(b).................
(c)...................
Centrally Administered Tribal Areas such of the Tribal Areas as defined in the Constitution of 1962 as have not been shown in this Schedule as included in any of the new Provinces."
In view of these provisions of the President's Order, the tribal areas, including Khyber Agency, which previously formed part of the West Pakistan, as defined in Article 242 of the Constitution have been1 excluded from the area of Peshawar Division but have retained their positions as being the Centrally Administered Areas, after the coming into force of the President's Order.
9. M. Zahurul Haq, Advocate, counsel for the petitioner argued that Notification No, 217-F, dated 13- 4-1931, referred to above, is an "existing law" which continues in force under the Constitution so as to empower the High Court to hear appeals or revision under the Code of Criminal Procedure as empowered by the said Notification.
10.The learned Advocate-General in repelling the contention, argued that even if for the sake of argument it is admitted that the Notification is an "existing law", the High Court's jurisdiction in the tribal areas (including Khyber Agency) is barred by Article 223 (5) of the Constitution. Article 225 provides for the continuance in force of certain laws and lays :-- "(1) Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature.
(7) In this Article, 'existing laws' means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra-territorial validity, immediately before the commencing day."
Under the provisions of this Article (225) Orders-in-Council such as Notification No, 217-E, dated 13- 4-1931, continues in force in Pakistan or any part of Pakistan, subject to this Constitution.
Article 223 provides for application of laws in tribal areas and the jurisdiction of the High Court therein under the Constitution, and lays :- "223 (1) No Central Law shall apply to a Tribal Area or to any part of a Tribal Area unless the President so directs, and no Provincial law shall apply to a Tribal Area or to any part of a Tribal Area unless the Governor of the Province in which the Tribal Area is situated, with the approval of the President, so directs, and in giving such a direction with Shah case may be, may direct that the law shall, in its application respect to any law, the President or the Governor, as the to a Tribal Area or to a specified part of a Tribal Area, have effect subject to such exceptions and modifications as may be specified in the direction.
Notwithstanding anything in this Constitution, neither the Supreme Court nor a High Court shall, unless the Central Legislature by law otherwise provides, exercise any jurisdiction under this Constitution in relation to a Tribal Area."
Sub-Article (5) of Article 223 bars the jurisdiction of the High Court in tribal areas, unless the Central Legislature by law otherwise provides. The Central Legislature has so far by c law not provided for the extension of jurisdiction of the High Court to tribal areas. Sub-Article (2) of Article 6 of the President's Order lays :- "The President may, with respect to all matters, make Regulations for the Centrally Administered Tribal Areas or any part thereof and no other law shall apply to such Tribal Areas or to any part thereof unless the President by notification otherwise directs and, in giving such direction with respect to any law, the President may direct that the law in its application to those Areas or to a specified part thereof shall have effect subject to such exceptions and modifications as may be specified in the direction."
It is not shown whether any law or Notification has been issued wherein the President has directed that the jurisdiction of the Peshawar High Court extends to the tribal areas of the North-West Frontier Province, including Khyber Agency.
A similar question came up for decision before the Supreme Court in Jamil Ahmad and another v.
The State and 5 others . The following paragraphs of the judgment of the reported case may be quoted with benefit :- "President's Order 11 of 1961, mentioned above, was issued by the President of Pakistan on the 4th2 day of July 1961, and was to come into force on a date to be notified by the Central Government in the official Gazette. The Gazette Notification in this respect was issued on the 12th of December 1961.
Subsection (2) of section 2 of the Order which is relevant for the purpose of this appeal is as follows :- '2 (2). The High Court of West Pakistan shall exercise in relation to the territories comprised in the Special Areas or any part thereof the same jurisdiction as would have been exercisable by the High Court of West Pakistan on the 14th day of October 1955, if sub-clause (i) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act, 1955, and Article 178 of the Constitution of the 23rd day of May 1956, had not been enacted.
As regards the legislative measures mentioned in this pro-vision, it may be recalled that under the Establishment of West Pakistan Act, which was enforced on the 14th of October 1955, amongst other territories the Tribal Areas of Baluchistan, the Punjab and the North-West Frontier, and the States of Amb, Chitral, Dir and Swat, described in the Act as 'Specified Territories' were incorporated in the Province of West Pakistan. Under section 7 of the same Act the High Court of West Pakistan was established by an order of the Governor-General (G.-G. 0. No, 19 of 1955--High Court of West Pakistan Establishment Order, 1955). The High Court was thus established and the Judges there to, were invested with territorial jurisdiction in relation to the whole of the newly-integrated Province of West Pakistan, including the 'Special Areas'. By a subsequent amendment of section 7 of the Act introduced by section 2 of the Establishment of West Pakistan (Amendment) Act, 1955. `Special Areas' were excluded from the jurisdiction of the High Court with effect from the 14th of October 1955, that is to say, from the very date of the establishment of West Pakistan. Article 178 of the 1956- Constitution had similarly kept the 'Special Areas' outside the jurisdiction of the High Court. The effect of the President's Order No, 11 of 1961, stated above, was to restore this jurisdiction over these areas with effect from the 12th December 1961, expressly doing away with the Establishment of West Pakistan (Amendment) Act, 1955, and Article 178 of the 1956-Constitution in this behalf. Nonetheless, the jurisdiction restored under this Order was short-lived as it came to an end by the enforcement of the 1962-Constitution which was enacted on the Ist of March 1962, and enforced from the 8th of June 1962, Article 223 (I) of the Constitution provides as follows :- `223(1). No Central Law shall apply to a Tribal Area or to any part of a Tribal Area unless the President so directs, and no Provincial Law shall apply to a Tribal Area or to any part of a Tribal Area unless the Governor of the Province in which the tribal area is situated, with the approval of the President, so directs, and in giving such a direction with respect to any law, the President or the Governor, as the case may be may direct that the law shall, in its application to a Tribal Area or to a specified part of a Tribal Area, have effect subject to such exceptions and modifications as may be specified in the direction.'
Clause 5 was added to this Article by the Constitution First Amendment Act, 1963 (I of 1964), to the following effect Notwithstanding anything in this Constitution neither the Supreme Court nor a High Court shall unless the Central Legislature by law otherwise provides, exercise any jurisdiction under this Constitution in relation to a Tribal Area.'
The learned counsel for the petitioners has argued that President's Order 11 of 1961 having been made by the President and not revoked, is a Central Law within the definition of that term in Article 242 of the 1962-Constitution and must be'enforced. Conceding that it is a Central Law in that sense and an existing law under Article 255 of the said Constitution, its continuance in force was subject to the relevant provisions of the Constitution. The plain requirement of Article 223(1), cited above, is that a Central Law shall operate in the Tribal territories, if so directed by the President under the Constitution. It is not shown that this was done. Again, sub-clause (5) stated above, which was added by the Constitution Act 1 of 1964, by which fundamental rights had been made justiciable, leaves no manner of doubt that the intention of the 1962-Constitution was to exclude the Tribal Areas from the jurisdiction of the High Courts in all respects till such time as the Central Legislature made a law to the contrary. If the intention had been to preserve the jurisdiction of the superior Courts under the President's Order No, 11 of 1961, there was no need whatsoever for the addition of this new clause in the Constitution. Under this clause the jurisdiction of the High Court shall prevail in the Tribal territories only if the Central Legislature by law so provides and not otherwise. Central Legislature is described in Article 19 of the 1962-Constitution to consist of the President and one House known as the National Assembly of Pakistan. President's Order No, 11 of 1961 is not a law of the Central Legislature, not having been passed by the National Assembly assented to by the.
President. At best, it is a Central Law passed by the President himself, which as already stated above, was not applied to Tribal territories under the 1962-Constitution. Not being a law of the Central Legislature, it loses its efficacy under Clause 5 of Article 223, cited above. It is significant to note here that the Central Legislature did enact a law called 'The Tribal Areas (Restoration of Jurisdiction) Act, 1964 (Act II of 1964)' published in the Gazette of Pakistan on the 10th of April 1964, whereby the jurisdiction of the Supreme Court and the High Court was restored in relation to the tribal areas of the Quetta Division. As no such law has been introduced in respect of the tribal area included in North Waziristan Agency, obviously the writ of the High Court did not run into that territory."
11. The upshot of the above discussion is that Article 223(1) requires that a Central Law shall operate in the tribal areas, if so directed by the President under the Constitution. It is not shown that this has been done. Again, the intention of the Constitution (1962) in sub-Article (5) of Article 223 was to exclude the tribal areas from the jurisdiction of the High Courts in all respects, including the appellate or revisional powers under the Code of Criminal Procedure till such time as the Central Legislature makes a law to the contrary. We, therefore, answer question No, 1 in the negative.
QAISAR KHAN, J.--After going through the judgment proposed to be delivered by my learned brother Shah Zaman Babar, J., I would like to add the following : The following two questions were referred for decision to a Division Bench :-
(a) Whether in view of the provisions in the present Constitution the right of appeal to the Court of Judicial Commissioner (now High Court) provided by the Government of India Foreign Department Order No, 1424-F dated 28-5-1903 still survives ?
(b) Whether the Political Agent, Khyber could still act as District Magistrate and take cognizance of cases under section 167(81) of the Sea Customs Act?
2. Order No, 1424-F dated 25-5-1903 was superseded by Order No, 217-F dated 13-4-1931 and instead of Order No, 1424, Order No, 217 is to be read in the first question. The relevant portions of Order No, 217 have been reproduced by my learned brother in his proposed judgment.
Since the petitioners in all the three cases had filed revision petitions against the orders of their convictions and sentences, it was therefore, essential to give a finding on the following point as well:
(c) Whether in view of Order No, 217-F there was any right of revision to the Court of the Judicial Commissioner (now High Court) from any order passed by Political Officers of the Khyber Agency as Magistrates and whether the said right, if any, still survived in view of certain provisions in the present Constitution.
We, therefore, decided to give our opinion on this point as well.
Question No, (1)(b).
3. Order No, 217-F is an existing law as defined in Clause (c) of Article 225 of the Constitution and it has, therefore, continued to be in force in the Khyber Agency in view of Clause 1 of the said Article.
According to the said Order, the powers of District Magistrate had been conferred on the Political Agent, Khyber and the Political Agent, Khyber, therefore, continued to have these powers. It was not denied by counsel for the parties that the Sea Customs Act applied to the Khyber Agency and in the circumstances the Political Agent, Khyber, could, therefore, take cognizance of cases under section 167 (81) of the Sea Customs Act. Consequently, I agree with my learned brother that question No, (b) be answered in the affirmative.
Questions (a) & (c)
4. Part 1 of Order 217-E shows that the Criminal Procedure Code had been made applicable to the Khyber Agency with certain modifications and section 1 of Part II of the Order lays down that the Court of the Judicial Commissioner (now High Court) was to exercise all the powers of the High Court under the Code. The right of revision of an aggrieved person provided in Chapter 32 of the Code has not been curtailed in any way, but the right of appeal of an individual provided in Chapter 31 only has been curtailed to the extent that a sentence of one year or less passed by the Political Agent has been made non-appealable. Since Order 217-F was an existing law in the Khyber Agency, a person aggrieved by an order of the Political Agent in the exercise of his powers under the Criminal Procedure Code awarding him a sentence of one year or upward had the right to come up in appeal to the High Court and in any other case had the right to come up in revision.
5. Article 223 Clause 5, however, bars the exercise of jurisdiction of the High Court in the tribal areas and this Clause lays down that notwithstanding anything in this Constitution the High Court shall not exercise any jurisdiction in relation to a tribal area unless the Central Legislature by law otherwise provides. Now the words "notwithstanding anything in this Constitution", in my opinion, are very much important in this respect and the High Court despite any other provision in this Constitution cannot exercise powers in the tribal area unless a provision to this effect has been made by any law of the Central Legislature. It was conceded by counsel for both the parties that no law has been made by the Central Legislature for extending the power of the High Court to the tribal area of the Khyber Agency and I, therefore, agree with my learned brother that the jurisdiction of the High Court does not extend to the Khyber Agency for hearing any appeal or revision from any conviction recorded by Political Officers as Magistrates in that Agency. The two questions are, therefore, answered in the negative. PLD 1969 SC 485 PLD 1969 SC 344