' Messrs Haji Gulabat Khan and Haji Ashraf Khan residents of village Darya Khel, Tehsil Miran Shah, North Waziristan Agency lodged complaint under section 403/419/420, P.P.C. Read with section 11 of the Frontier Crimes Regulation before the Assistant Political Officer/ Additional District Magistrate, Miran Shah, North Waziristan Agency (Respondent No,8) against Kh. Khalid Pervez petitioner herein with the allegation that he had defrauded them a sum of Rs,4,34,000 in connection with transport business in North Waziristan Agency. After preliminary inquiry respondent No,8 issued process for appearance of the petitioner. The petitioner failed to put up his appearance. Non-bailable warrants addressed to the District Magistrate, Sargodha were issued to procure petitioner's attendance.
2. The petitioner by means of this constitutional petition seeks declaration, to the effect, that the process issued by respondent No,8 directing him to appear before him, is illegal with consequential relief by way of injunction restraining local police Sargodha from arresting and removing him to the tribal areas.
3. Learned counsel for petitioner contended that Haji Gulabat Khan, respondent No,5, although hails from Miran Shah, North Waziristan Agency, has filed the complaint to pressurize him to settle his dispute with respondent No,7. It was contended that since the warrants of petitioner's arrest are being executed within the territorial limits of High Court, this Court has the jurisdiction to examine the legality of the action being taken against the petitioner. In support of his submission he relied on Jamil Ahmad and others v. The State and 5 others PLD 1969 SC 344.
' It was next argued that President's Order 11 of 1961 being a Central law restoring the jurisdiction of the High Court and Supreme Court to tribal areas can be enforced. It was lastly contended that sub-Article (7) of Article 247 although provided that this Court shall not exercise its constitutional jurisdiction in relation to Superior Court's which was exercised in relation to tribal areas before the enforcement of 1973 Constitution. He made reference to The State v. Dosso and others PLD 1958 SC 533; Abdul Nabi and others v. Commissioner F.C.R. Quetta and others PLD 1962 (W.P.) Quetta 1; Chargul v. The Commissioner F.C.R. Quetta PLD 1962 (W.P.) Quetta 15; Samundar and 17 others v.
The Crown PLD 1954 SC 228; Firdaus and another v. Pakistan PLD 1961 (W.P.) Pesh. 165; Sardar Nawab Haji Muhammad Khan v. Additional Commissioner and Commissioner, F.C.R. Quetta Division, .Quetta and others PLD 1964 (W.P.) Lah.
401.
4. Mr. S.M.K. Lodhi, Advocate representing the contesting-respondents, on the other hand, submitted that constitutional jurisdiction of this Court does not extend to tribal areas. It was argued that the cause of action in the instant case had arisen within the territorial limits of North Waziristan Agency and the validity of the warrants issued by respondent No,8 sought to be executed by the District Magistrate Sargodha cannot be examined by this Court in Writ jurisdiction. He also relied on Jamil Ahmad v. State PLD 1969 SC 344 and Muhammad Afzal v. Assistant Political Officer 1985 P Cr.
L J 1784.
' As regards the first contention as to whether the jurisdiction of this Court extends to tribal areas, the Supreme Court in Jamil Ahmad's case cited above observed:- "The learned counsel for the appellants, 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 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 justifiable, 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 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 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."
5. Article 247(7) 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."
' Similarly section 2 of the Tribal Areas (Restoration of Jurisdiction) Act II of 1964 provided:- Restoration of jurisdiction of the Supreme Court and the High Court.-- The Supreme Court and the High Court of West Pakistan shall exercise in relation to the Tribal Areas of the Quetta Division the same jurisdiction as was exerciseable by them in relation to those areas before the commencement of the Constitution (First Amendment) Act, 1963 (I of 1964).
6. The Majlis-e-Shoora (Parliament) has not so far by act of legislature extended the jurisdiction of the High Court to the tribal areas.
' It is significant to point out that Act II of 1964 whereby the jurisdiction of the Supreme Court and the High Court was restored, was in relation to the tribal areas of Quetta Division alone, and not in respect of the tribal areas included in the North Waziristan Agency. Therefore, the jurisdiction of this Court does not extend to the tribal areas constituting North Waziristan Agency. The authorities cited by learned counsel for petitioner are, therefore, not helpful rather distinguishable.
' As regards the petitioner's apprehension that after his arrest he would be straightaway removed to tribal areas, suffice it, to observe that the petitioner himself in sub-paras. (ii) and (iii) of para. 13 of this petition, referred to section 86-A of the Criminal Procedure Code, and pleaded, that the instant case strictly falls within the ambit of this section and he cannot thus, be removed from the jurisdiction of the Magistrate concerned to tribal areas.
Syed Riazul Hassan Gillani, learned Deputy Attorney-General, representing the Federation of Islamic Republic of Pakistan (respondent No,1) stated that the provisions of section 86-A of the Criminal Procedure Code shall be complied with, after the execution of the warrants and before the removal of petitioner to the tribal areas for his production before respondent No,8.
' Section 86-A provides:- "86-A. Procedure for removal in custody to Tribal 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."
It appears that this salutary provision of law has been introduced to safeguard the liberty of a person against the abuse of process of law. The Magistrate before whom the accused is produced would hear the case in the same manner and would have the same jurisdiction, as that of the Magistrate who had issued the process. He would direct removal of the petitioner to tribal areas only after he is satisfied that the evidence produced before him, raised a strong or probable presumption that the accused had committed the offence.
' The more efficacious remedy, being available to the petitioner, and specially in view of the assurance given by the learned Deputy Attorney-General, that the provisions of section 86-A, Cr.P.C. Shall be complied with, I am not inclined to interfere in the matter at this stage in writ jurisdiction.
7. Subject to the observation made above this petition is dismissed with no order as to costs. 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.