INAYAT ELAHI KHAN, J.--The relevant facts of the case, briefly stated, are that Messrs Millat Agro Industrial Developers Limited, incorporated in Lahore, were dealing in machinery, implements, fertilizers etc. And had its Branches at various places in Pakistan. On 13-2-1980, Khanzada son of Amirzada (respondent No.l) paid an advance sum of Rs.39,750 to the Company at Tangi Branch office for the purchase of a Tractor. Since the Tractor was not supplied to him within the fixed period, he approached the petitioner Mst. Shaheen Rafiq, who was then working as a Zonal Managress of the Company at Peshawar. According to the petitioner, an undertaking was obtained from her by coercion that she would either arrange the delivery of the Tractor to respondent No.l or manage to refund the earnest money with interest. After sometime, the Managing Director of the Company forced the petitioner to resign from service and closed his business in N.-W.F.P.
Respondent No.l and other creditors then applied to the Lahore High. Court for liquidation of the Company wherein an Official Liquidator was appointed. A criminal case against the petitioner and the Managing Director of the Company was also filed before the Summary Military Court at Peshawar which after recording necessary evidence acquitted the petitioner of the charge but convicted the Managing Director for committing fraud who was accordingly sentenced to imprisonment for life and his entire movable and immovable property was also confiscated.
Respondent No.l after acquittal of the petitioner of the criminal charge again approached her for the refund of his money arid threatened her with dire consequences. He then abducted Abdul Rafiq, father of the petitioner, and took him to the tribal area for putting pressure on the petitioner to extract money from her. Her father was later on released on bail by the Assistant Political Agent on the condition that he would produce his daughter to face proceedings under the Frontier Crimes Regulation, 1901. On her appearance before the Assistant Political Agent, the matter was entrusted to a Jirga u/s 8 of the Regulation. Before the Jirga respondent No.l. Also claimed an additional amount of Rs.29,000 as expenses incurred in connection with making arrangements for abduction of the petitioner's father. The Jirga in their award recommended that the complainant be paid a sum of Rs.39,750 with 14% interest. The. Jirga award was later on approved by the Assistant Political Agent on 10-11-1981 with the amendment that the awarded amount would be paid by Mst. Shaheen Rafiq in five equal instalments with no interest. The petitioner then filed a revision against the aforesaid order before the Commissioner, Frontier Crimes Regulation (F.R.), Peshawar Division which was also dismissed on 22-2-198 with the modification that the decretal amount would be recovered from the petitioner in ten equal instalments on monthly basis. The petitioner, feeling aggrieved has, therefore, riled the present Constitutional Petition.
2. In support of the writ petition it is contended that the impugned orders of respondents Nos. 2 and 3 are without jurisdiction since the cause of action had arisen in the settled area because admittedly the amount of Rs.39,750 was paid to the Company by respondent No.1 at its Tangi Branch office of Tehsil Charsadda and the receipt whereby the petitioner undertook to arrange for delivery of the Tractor or arrange for the return of earnest money was also executed at Peshawar. It is contended that since the cause of action has arisen outside the Tribal area the aforesaid respondents had no jurisdiction to deal with the matter and, therefore the entire proceedings before them were coram non judice. It is also contended that the father of the petitioner was abducted from Peshawar and taken to the Tribal area for putting pressure on the petitioner. He was later on released on bail conditionally that he would produce his daughter (petitioner) before the Assistant Political Agent to face proceedings under the Frontier Crimes Regulation. Thus it was due to coercion that the petitioner was made to submit to the jurisdiction of the Jirga members where she also submitted applications expressing lack of confidence in the said members but to no avail.
It is next contended that section 8 of the Frontier Crimes Regulation in terms was not applicable and, therefore, the award of the Jirga and the subsequent proceedings stood vitiated. The learned counsel for respondent No.l, however contended that since the respondent belonged to a Frontier Tribe he had right approached the Political authorities in .Tribal area for settlement of the dispute and thus the proceedings before the Jirga, their award and the subsequent order of the Assistant Political Agent were in accordance with law and particularly s( when there is sufficient material on the file that respondent No.l was defraude of Rs.39,750 on the pretext that a Tractor -would be provided to him by the Company of which the petitioner was the Zonal Managress.
3. After hearing, the learned counsel for the parties and going through the record we have come to the conclusion that the proceedings initiated by the Assistant Political Agent by making a reference to the Jirga u/s 8 of the Frontier Crimes Regulation were without jurisdiction. It is not disputed that the amount o Rs.39,750 was paid by respondent No.l in Tangi Branch Office of the Company which is located in Tehsil Charsadda, District Peshawar. Similarly, the receipt relied upon respondent No.l was executed by the petitioner at Peshawar where she undertook that either the Company would provide the Tractor to respondent No.l or his earnest money shall be refunded. From these facts it is clear that respondent No.l had a cause of action against the Managing Director of the, Company on whose behalf the money was received by the Tangi Branch office the Company. The petitioner did not personally receive any amount from respondent No.l. Nor did she undertake any personal responsibility for repayment of the money. Furthermore, the cause of action having arisen within the settle area, respondent No.l could seek his remedy in a Court of law within whose jurisdiction the cause of action had accrued. There being no nexus between the subject-matter of the dispute and the tribal area of Muhammad Agency. 1t is also, established that by resorting to abduction of the petitioner's father to the tribe area, the petitioner was forced and compelled to appear before the Politic authorities to give her consent to the constitution of a Jirga. Section 8 of the Frontier Crimes Regulation is also not attracted for there is nothing on the file to show that the alleged dispute was likely to cause a blood-feud or murder o culpable homicide etc. The section further provides that a reference can be mad to the Jirga only if no suit was pending in respect of the dispute. In view of the pendency of liquidation proceedings in the Lahore High Court at the instance c respondent No.l and other creditors it can be said that a suit in respect of the dispute was already pending at the relevant time. Furthermore, the criminal case filed by respondent No.l had also resulted in acquittal of the petitioner and on] the Managing Director of the Company was held responsible for playing frau who was also convicted and sentenced by the Summary Military Court as state above. In this background of the case, the entire proceedings initiated by the Assistant Political Agent at the instance of respondent No.l were not only without jurisdiction but also tainted with mala fides. The record shows that respondent No.l had been continuously residing in the settled area and hi address is given as "resident of Mauza Khat Killi Tehsil Charsadda, District Peshawar" in all the relevant documents available on the file and even before the Political authorities he had given the same address. Even if respondent No. Belonged to Utman Khel Tribe, it is difficult to hold that section 8 of the Regulation which provides for reference to Jirga of certain civil disputes which are likely to lead to bloodshed or disturbance of peace or which involve a part belonging to a "Frontier tribe" would be applicable to the ease because respondent No.l though a member of a "Frontier tribe" was permanently residing in the settled area in the ordinary course of his business. Further, the cause of action had also arisen in the settled area where the money was paid by respondent No.l to the Branch office of the Company at Tangi in Tehsil Charsadda and the aforesaid receipt was also executed by the petitioner at Peshawar. In Muhammad Siddiq and other v. Government of Pakistan and others 1981 SCM R 1022 it was held that:- "The ouster of jurisdiction of the superior Courts is not to be lightly assumed, and the plain meaning and intention of the ouster clause appears to be to exclude the jurisdiction of the Supreme Court and the High Courts only in those matters, which are exclusively concerned with Tribal areas: and that the ouster clause cannot be interpreted so as to exclude the jurisdiction of a superior Court in matters in which any part of the cause of action accrues, or any effective action or step is taken or performed in, or at, a place outside the Tribal area, affecting the life, liberty or property of a citizen of Pakistan, or any other person for the time being in Pakistan, and having the right to be governed by the ordinary law of the land and in accordance with the procedures obtaining there under."
Keeping in view the above principle and also the fact that the final order in the case was passed by the Commissioner, Frontier Crimes Regulation (F.R." outside the Tribal area, this Court obviously would have the necessary jurisdiction.
4. For the aforesaid reasons, this writ petition is accepted to the extent that no person or authority shall give effect to the impugned judgment/decree of respondents Nos. 2 and 3 outside the Tribal area nor execute any summons, warrants or orders issued in respect of the aforesaid decree/judgment against the petitioner. No order as to costs.