1. SHAH ZAMAN BABAR, J---The fundamental question that has arisen is whether the writ jurisdiction of the High Court extends to the territory incorporated in Malakand Division of the North-West Frontier Province?
2. The brief facts of the case are as under: Said Faqir and 7 others are allegedly members of 8 families and hail from Malooch, Saidu Sharif, District Swat. Disputes over title and possession of lands, situated at various places In the District of S Nat arose amongst the petitioners and the respon--dent Dilawar Khan and five others, as representatives of various contestants. Dilawar and 5 others (respondents 5 to 10 of this petition) claimed title to the property in dispute. They instituted a suit before the Deputy Commissioner, Swat (respondent No. 3). By the judgment (copy Annexure A) dated 26-1-70, respondent No. 3 rejected the claim of the plaintiffs and upheld the title to the disputed property of the present petitioners, who were defen--dants in the suit. The appeal preferred by the plaintiffs before the Additional Commissioner, Malakand Division (respondent No. 2) was also rejected by the judgment dated 12- 1-1971, (Annexure B). A revision petition by Dilawar Khan etc. Was also dismissed by O. S. D. (Joint Secretary), Government of N: W. F. P., Home Department, Peshawar (respondent No. 1), vide order dated 28-9-1971 (Annexure D) after some clarification. A review petition on behalf of Dilawar Khan etc. Was also rejected by respondent No. 1 by his order dated 23-10-71 (Annexure E).
3. Said Faqir and seven others, who were defendants in the suit, have challenged the order in revision by respondent No. 1, dated 28-9-1971, in this writ petition, under Article 98 of the Constitution of Pakistan (1962), read with Provisional Constitution Order, 1969. The petitioners have prayed that the impugned order be quashed and the orders passed by respondents 2 and 3 be maintained.
2. A High Court has such writ jurisdiction as is conferred on it by the Constitution or by law (See Article 98(1) of the Constitution of the Islamic Republic of Pakistan, 1962, and Article 201(1) of the Interim Constitution of the Islamic Republic of Pakistan). Malakand Division incorporates the Districts of Chitral, Dir and Swat. The present Districts of Chitral, Dir and Swat were States in Pakistan at the time of Independence and were ruled by their respective Rulers. To appreciate the question involved, the Legislative and Constitutional measures taken from time to time with regard to these former States, need re-capitulation. By the "Establishment of West Pakistan Act, 1955, which came into force on 14th day of October 1955, the territories of the Governors' provinces of the Punjab, the North-West Frontier Province and Sind, the Chief Commissioner's province of Balu--chistan and the States and other territories were integrated into West Pakistan. The States of Amb, Chitral, Dir and Swat were also incorporated into the province of West Pakistan and were called "Specified Territories", (see section 2 (1)(iv)). Subsection (3) of section 2 of this Act provides "Nothing in this Act shall authorise any change in the inter--nal administration of the Tribal Areas of Baluchistan and the North-West Frontier or the States of Amb, Chitral, Dir and Swat (hereinafter referred to as the `special areas') except in accordance with this subsection . . . ."
4. By section 7 of this Act, the High Court of West Pakistan was established to replace the High Court of Lahore, Chief Court Wir of Sind, and the Judicial Commissioner's Courts in the North West Frontier Province and Baluchistan. Thus it is clear that the former States of Amb, Chitral, Dir and Swat were called special Areas by the Ace of 1955. The Establishment of West Pakistan(Amendment) Act, 1955, amended section 7 of this Act in the following manner by section 2 Amendment of section 7--In section 7 of the Establish of West Pakistan Act, 1955 (hereinafter referred to as the said Act:--
(a) In subsection (1)--.
(i) after the words `the whole of the Province of West Pakistan', the words and comma except the, special Areas', be inserted
(ii) for the words `the whole of West Pakistan' the words and comma `the whole of the Province of West Pakistan, except the Special Areas', be substituted;
(b) after subsection (4), the following new subsections shall be added, namely (5) All proceedings which Immediately before the appointed day are pending in the High Court of Lahore, the Chief Court of Sind and Judicial Commissioners' Courtsin the North-West FrontierProvince and Baluchistan and in any other Court functioning as High Court for any other specifiedterritory, shall, as from that day, stand transferred to the High Court of West Pakistan and shall be continued as if they had been proceedings instituted in the High Court of West Pakistan, and any order made by any of the said replaced High Courts in any such proceedings as aforesaid, shall for all purposes, have effect as an order made by the High Court of West Pakistan': The Constitution of the Islamic Republic of Pakistan, 1956 came into force. By Article 218 of this Constitution, "Special Areas", was defined as "means the areas of the Province of West Pakistan which immediately before the commencement of the Establishment of West Pakistan Act, 1955, were--
(a) .------------------------
(b) the States of Amb, Chitral, Dir and Swat S " Article 178 of this Constitution related to the exclusion of the Supreme Court and High Court jurisdiction from Special Areas, in the words Notwithstanding an) thing in the Constitution the Supreme Court nor a High Courtshall, unless parliament by law other-- wise provides, exercise any jurisdiction under the Constitution. In relation to the Special Areas."
5. For the peace arid good Government of the "Special Area" of Dir State a Council of Advisers to aid and advise the Ruler of Dir was established by Dir (Advisory Council) Regulation, 1960 (Regulation I of 1960). This Regulation was repealed by Dir (Administration) Regulation. 1967 (Regulation II of 1967).
6. In the meantime Special Areas (Restoration of Jurisdiction) Order, 1961 (President's Order 11 of 1961) came into force from the 5th of July 1961. By Article 2(2) of this Order the High Court of West Pakistan's jurisdiction to Special Areas was restored. Sub-Article (2) of Article 2 lays: "(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 March 1956, had not been enacted."
7. The restoration of the jurisdiction by President's Order No. 11 of 1961 was, however, short lived. The Constitution of the Islamic Republic of Pakistan, 1962 came into force from 8 of June 1962. Article 1 of this Consti--tution lays: "1.-(1) The State of Pakistan shall be a Republic under the name of the Islamic Republic of Pakistan.
(2) 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."
8. The expression "Tribal Area" was' defined by Article 242 of this Constitution thus "Tribal Areas" means the areas to 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; The States of Amb, Chitral, Dir and Swat, formerly termed "Special Areas" were now called "Tribal Areas".
9. Article 223(1) and clause (5) of Article 223, as amended by Act I of 1964, are reproduced below: "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.
(5) Notwithstanding anything in this Constitution, neither the Supreme Court nor t3 High Court shall, unless the Central Legislature by law otherwise provides, exercise any jurisdiction under this Constitution in relation to a Tribal Area."
10. A plain reading of these Articles of this Constitution and the Establishment of West Pakistan Act, 1955 shows that "Tribal Areas" as defined in Article 242 and Article 1, though included in Pakistan; neither the jurisdiction of the Supreme Court nor that of the High Court extended to tribal areas.
11. Section 1(2) of Dir (Administration) Regulation, 1967, in view of Article 242 of the Constitution of Pakistan, 1962, called the former Dir State as Tribal Area.
3. The question of jurisdiction of High Court into tribal areas of Pakistan had come up for decision before the Supreme Court in Jamil Ahmad and another v. The State and 5 others (PLD 1969 SC 344). The Discussion pertaining to the point of jurisdiction at pages 346, 347 and 348 is reproduced: As regards the legislative measures mentioned in this provi--sion, 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 theth States of Amb, Chitral, Dir and Swat, described in the Act a9 '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. O. No. 19 of 1955-High Court of West Pakistan Establishment Order, 1955). The High Court was thus established and the Judges thereto, ware 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 Establish--ment of West Pakistan (Amendment) Act, 1955, 'Special Areas' were excluded from the jurisdiction of the High Court with effect from the lath 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 jurisdic--tion 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-Constitu--tion in this behalf.
12. 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 1st of March 1962, and enforced from the 8th of June 1962. Arti--cle 223(1) 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 say 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."
13. 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."
14. The learned counsel for the appellants, has argued that Pre--sident's Order 11 of 1961 having been made by the President and not revoked, is a Central Law within the definition of the term in Article 212 of the 1962-Constitution and must be enforced. Conceding that it is a Central Law in that sense and an existing law under Article 225 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 I of 1964, by which fundamental rights had been made justiciable, leaves no manner of doubt that the intention of 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 bad 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 Legis--lature by law so provides and not otherwise. Central Legis--lature 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 and 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 Legis--lature, it loses its efficacy under Clause 5 of Article 223, cited above."
15. It was thus decided that the High Court's jurisdiction does not run into Tribal Areas of Pakistan.
4. The administrative changes in the Tribal Areas comprising the former States of Dir, Chitral and Swat were brought in by Dir. Chitral and Swat (Administration) Regulation, 1969 (Regulation I of 1969), gazetted on 15th of August 1969. Sec--tion 2(b) of this Regulation defines "specified territories" as gleaning the Tribal Areas of the former States of Dir, Chitral and Swat. In view of section 6 of this Regulation, the West Pakistan Government constituted the specified territories into the adminis--trative unit called Malakand Division. Malakand Division is comprised of the Districts of Dir, Chitral and Swat.
16. The Province of West Pakistan (Dissolution) Order, 1970 (President's Order No. 1 of 1970) came into force on the 1st of July 1970. In view of Article 4 of this Order, the Province of West Pakistan was dissolved and instead four provinces were constituted to be known respectively as (a) Baluchistan,
(b) the North-West Frontier Province, (c) the Punjab and id) Sind. According to sub-Article (2i of Article 4, the territories of the new provinces were set out in the Schedule as under:- THE SCHEDULE Territories of-
(a) Peshawar Division including former Amb State and Tribal Areas adjoining Hazara District but excluding other Tribal Areas;
(b) Vera Ismail Khan Division;
(c) Malakand Division including the former States of Dir, Swat and Chitral and the Malakand protected Area, but excluding other Tribal Areas."
17. Article 14 of this Order provided for the establishment of a High Court for each of the new provinces.
18. High Courts (Establishment) Order, 1970 (President's Order 8 of 1970) was also promulgated. By sub-Article (1)(a) to Article 3, the Peshawar High Court with its principal seat at Peshawar, was established from the 1st day of July 1970 for the North-West Frontier Province, Sub-Article (2) of Article 3 provides: "Each new High Court shall be a Court of record and shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories for which it is established as the High Court of West Pakistan, immediately before the appointed day, had in respect of the territories in relation to which it exercised appellate jurisdiction.
6. The Interim Constitution of the Islamic Republic of Pakistan came into force from the 21st day of April 1972. Article 260 of the Interim Constitution defines "Tribal Areas" and Article 261 relates to an administration of Tribal Areas. The relevant portions of both the Articles are reproduced below: "260. In this Constitution the expressions, 'Tribal Areas', `Provincially Administered Tribal Areas' and the `Centrally Administered Tribal Areas' shall have the following meanings:-
(a) "Tribal Areas' means the areas in Pakistan which, im--mediate before the commencing day, were Tribal Areas, and include:--
(b) 'Provincially, Administered Tribal Areas mean,) the districts of Chitral, Dir and Swat (which includes Kalam), Malakand protected Area, the Tribal Area adjoining Hazara district and the former State of Amb; and
(ii) ------------------------------.
(i) ------------------------------..
(ii) ------------------------------..
(iii) ------------------------------..
(iv) ------------------------------..
19. "261.-(1) Subject to the provisions of this Constitution, the executive authority of the Federation shall extend to the Centrally Administered Tribal Areas, and the executive authori--ty of a province shall extend to the Provincially Administered Tribal Areas therein.
(2) ------------------------------
(3) ------------------------------.
(4) ------------------------------.
(5) ------------------------------..
(6) The President may, at any time, by Order, direct that the whole or any part of a Tribal Area shall cease to he a Tribal Area, and such Order may contain such incidental and conse--quential provisions as appear to the President to be necessary and proper: Provided that before making any order under this clause, the President shall ascertain, in such manner as he considers appro--priate, the views of the people of the Area concerned as repre-- sented in jirga.
(7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under this Constitution in relation to a Tribal Area, unless the Federal Legislature 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."
20. Reading the two Articles together, we hold that the expression "Tribal Areas" includes the former States of Chitral Dir and Swat. The jurisdiction of the Peshawar High Court is excluded under this Constitution in relation to the Tribal Area; consisting of former States of Chitral, Dir and Swat and now far purposes of executive administration incorporated as Districts of Chitral, Dir and Swat in Malakand Division.
21. Mr. Pir Bakhsh Khan, learned counsel for the petitioners, next argued that the impugned order of respondent No. 1 was passed at Peshawar and, therefore, this High Court has got juris--diction to quash the order. We see no force in this argument. The cause of action with respect to the dispute over the landed property between the parties occurred in the District of Swat. The impugned order is to take effect in a territory outside the limits of writ jurisdiction of this High Court and therefore, the same order cannot be quashed. Reliance is placed on:
(1) Jamil Ahmad and another v. The Stare and 5 others PLD 1969 SC 344 and (2) The Superintendent, Land Customs, Torkham (Khyber Agency) v. Zewar Khan and 2 others PLD 1969 SC 485.
22. In the result, the writ petition is dismissed, parties to bear their own costs.