' QAZI MUHAMMAD JAMIL, J--The following five Constitutional petitions impugn the procedure of trial under the Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regulation 1975, as amended, hereinafter called Regulation I and the Provincially Administered Tribal Areas Civil Laws (Special Provisions) Regulation, 1975, as amended hereinafter called Regulation II. The learned counsel appearing on behalf of the petitioners addressed their arguments on the same day and the petitions are disposed of together.
(i) W.P. No,401 of 1989 (Mohammad Irshad v. A.C., Sawat etc.),
(ii) W.P. No,417 of 1989 (Mohammad Wakil v. E.A.C. Matta etc.),
(iii) W.P. No,442 of 1989 (Ameer Khan v. Addl. Secretary etc.),
(iv) W.P. No,495 of 1989 (Yousaf Khan etc. v. Jamsheed Khan etc.) and
(v) W.P. No,28 of 1990 (Mohammad Zeb. v A.C. Etc).
' The facts relevant to the disposal of the these petitions are briefly narrated as follows.
2. Mohammad Irshad, petitioner in Writ Petition No,401/89 is the brother of one Barkat who was murdered and a report was lodged in Police Station, Mingora by the deceased himself in an injured condition. The investigation has taken place under the Code of Criminal Procedure but the challan was placed before Assistant Commissioner, Swat, respondent No, 1 who is exercising the powers of Deputy Commissioner under Regulation 1. Respondent No, 1 then referred the case to be tried by the Jirga as enjoined by the said Regulation. The petitioner objected to the reference being made to the jirga but the same was turned down by respondent No, 1
3. Mohammad Wakil, the petitioner in Petition No, 417/89 along with others was fired at by respondents 4 and 5 as a result of which Faiz-ud-Din died. A case was registered at Police Station, Matta, District Swat. The investigation was completed under Criminal Procedure Code but the challan was placed before Extra Assistant Commissioner, Matta exercising the powers of Deputy Commissioner under Regulation I who made a reference to a Jirga constituted under the said Regulation. The petitioner's objection to the same was turned down.
4. Ameer Khan, the petitioner in Constitutional Petition No, 442/89 is an accused along with four others who was charged for the offences under section 302/307/34 Pakistan Penal Code vide F.I.R.
Registered at Police Station, Aluch, District Swat. He was arrested and his bail application was rejected by Assistant Commissioner, Alpuri, District Swat and his approach to Additional Commissioner, Malakand Division and Additional Secretary to Government of N.-W.F.P. Home and Tribal Affairs Department, Peshawar also failed. He also objects to the cognizance of the case against him by the hierarchy of the officers empowered to do so under Regulation I.
5. Petition No, 495/89 involves a dispute of civil nature. Respondent No, 1 filed a suit for possession through redemption before respondent No, 5, i.e, Extra Assistant Commissioner, Swat. The defendants raised objection of limitation but the issue was decided by the said respondent without recording any evidence. Similarly, petitioner No, 1 applied for being impleaded as a party but the same was dismissed by the hierarchy of officers established under Regulation II. Petitioners 2 to 5 also submitted application to Extra Assistant Commissioner, respondent No, 5, objecting to his jurisdiction in the cause as the same was violative of the Constitution of Islamic Republic of Pakistan but the said respondent refused to entertain the application and returned the same in original.
6. Petitioner Mohammad Zeb in Writ Petition No, 28 of 1990, lodged a complaint in Police Station, Uch, District Dir for the murder of four persons and injuries to two others. All the accused absconded, according to the petitioner, except Liaqat Ali, respondent No,
5. Once again investigation was carried in accordance with Criminal Procedure Code and the challan was placed before Extra Assistant Commissioner who referred the matter to a Jirga constituted under Regulation I. The petitioner's objection to the trial by Jirga was rejected.
7. The petitioners before us pertain to Swat and Dir which were former States of British India governed by their own Rulers. They acceded to Pakistan and later on merged with the then Province of West Pakistan by W.P. Regulation I of 1969. Later on the dissolution of the said Province, they became part of the N.-W.F.P. The administrative units such as districts and divisions were created by notifications. Civil administration and police force were established in the area and they were brought at par with rest of the districts and divisions in th North-West Frontier Province. By Regulation I of 1970, the Code of Criminal Procedure, the Evidence Act and the Police Act were made applicable to the said areas. From then onwards nearly all the substantive and procedural laws, both civil and criminal, as were enforced in the N.-W.F.P. Were made available to the inhabitants of the said areas. As such, the ordinary Courts functioned for nearly four years for the disposal of both the disputes of civil nature and criminal offences when in the year 1975, the impugned Regulations were made. It is interesting to note that Dir, Swat and Chitral had no status as tribal areas prior to Independence. But in their own wisdom the framers of the Constitution of 1973 included them in the definition of Provincially Administered Tribal Areas as laid down in Article 246-B of the Constitution. The main significance for their being so declared is to be found in Article 247(3)(4) of the Constitution. The said Article reads as follows:- ' Article 247. Administration of Tribal Areas.
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3. No Act of Majlis-i-Shoora (parliament) shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs and no act of Majlis-i-Shoora (Parliament) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area or to any part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area or to a specified part therof, have effect subject to such exceptions and modifications as may be specified in the direction.
4. Notwithstanding anything contained in the Constitution, the President may, with respect to any matter within the legislative competence of Majlis-i-Shoora (Parliament) and the Governor of a Province, with the prior approval of the President, may, with respect to any matter within the legislative competence of the Provincial Assembly make regulations for the peace and good government of a Provincially Administered Tribal Area or any part thereof, situated in the Province."
' Thus the N.-W.F.P. Legislature has no direct law-making power over the Provincilly Administered Tribal Areas. The Provincial laws are applied to such an area through an executive decree. The Governor of the Province has also been given power, with the prior approval of the President, to make Regulations on any subject within the legislative competence of the Provincial legislature "for the peace and good government" of the said area. As such the constitutional transformation of the former States to the Tribal Areas has given an initial disadvantage to the said States in the legislative field which, of course, we cannot question. What is, however, being questioned is the treatment meted out to the inhabitants of the said area who are as good citizens as rest of them in Pakistan by subjecting them to Regulations which estalish special forums and procedure for the administration of justice.
' In the field of Criminal justice, as is contended by Mr. Nasir-ul-Mulk, Bar-at-Law, the learned counsel for the petitioner in Petition No, 401/89, the argument followed by the learned counsel appearing in other petitions, the special procedure provided in Regulation I of 1975 for the trial of offenders is not only discriminatory ex facie but patently arbitrary in its application. The introduction of such a special procedure and special forums thereto in deviation to the ordinary procedure and ordinary Courts is violative of Article 25 of the Constitution guaranteeing equality before law and equal protection of law. It not only created anomalous situation by excluding certain offences from its purview to be tried by the ordinary Courts but also led to an irrational classification between those offences triable under Regulation I of 1975 and those left out to be tried by the Courts of law. It is further contended that the ordinary citizen of Provincially Administered Tribal Areas are being discriminated against in the matter of application of Criminal Procedure Code, Evidence Act and judicial forum as against rest of the citizens of Pakistan for no ostensible reason and for no objective whatsoever.
8. In the field of adjudication of civil disputes, similar arguments were advanced. It was contended that despite the extension of ordinary procedural laws and substantive laws as prevalent in rest of the Provinces including Civil Procedure Code, Evidence Act and Civil Courts Ordinance, Regulation II is subjecting the citizens of the said area to special procedure which specifically forbids the application of C.P.C. And Evidence Act and which provides a forum in the form of a Jirga comprising of goverment officials and laymen. Apart from the serious anamolies which have crept in by a dual judicial system resulting in the delay in the disposal of cases and miscarriage of justice, the classification, within the same area, between those who are to be tried by the Jirga under Provincially Administered Tribal Areas Regulation and those whose cause shall be considered by the Courts of law is unreasonable, has no basis whatsoever, and no nexus with any objective. Furthermore, the protection of ordinary laws available to rest of the citizens of the Province is being denied to the citizens of Provincially Administered Tribal Areas which violates Article 25 of the Constitution.
9. Regulations I and II, were made by the Governor of the Province with the prior approval of the President under Article 247(4) of the Constitution. Originally Regulation I provided special provisions for the administration of justice in a limited number of criminal cases, mentioned therein, under Pakistan Penal Code. Similarly, Regulation II laid down special provisions for Civil Procedure to be applied for settling dispute of civil nature mentioned therein. Originally both the Regulations were applied to Provincially Administered Tribal Areas of Chitral, Dir and Swat (which includes Kalam) and Malakand Protected Area. An amendment was introduced by Regulation IV of 1976 which excluded the Malakand Protected Area from its purview but included Kohistan as well. By the same amendment, the limited jurisdiction in the original Regulations was made applicable to all offences punishable under the Pakistan Penal Code except those mentioned in Chapters VI, VII, IX, IX-A and XII by yet anotehr amendment introduced in the year 1977, Chapters IX and IX-A of the Pakistan Penal Code were omitted and instead Chapters VIII, IX, IX-A, X and XI were substituted. Similarly, Regulation II was amended to substitute the word `Jirga' for the word 'tribunal'. The scope of the jurisdiction to be exercised under the Regulation was enhanced and apart from all suits of civil nature, with a few significant exceptions, all suis by a landlord for the arrear of rent or the money equivalent to rent or for sum recoverable under section 7 of the N.-W.F.P. Tenancy Act of 1950 were included for being referred to a Jirga constituted under the Regulation and adjudicated upon in accordance with the provisions of the Regulation. In the orginal Regulation, the Limitation Act, 1908 was made applicable and the powers to adjudicate upon the limitation to file a suit or an application was given to the Deputy Commissioner before he could refer the matter to a Jirga. By the aforesaid amendment the time limit if provided by `riwal, custom or usage having the force of law was given priority to the Limitation Act. Originally, Tehsildar was to be the Chairman of the Jirga constituted under the Regulations but by the aforesaid amendment NaibTehsildar could also exercise the powers of Tehsildar as such.
11. The Chapters of Pakistan Penal Code which were excluded from the special procedure provided by Regulation I, as amended, are related to the State, the State funtionaries or the funtions of the State and the Government. For example, Chapter VI deals with the Offences against the State, Chapter VII lays down Offences relating to the Army, Navy and Air Force. Chapter IX-A, deals with offences relating to election and Chapter XII contains the offences relating to coins and Govenment stamps. The offences so excluded are triable before the ordinary Criminal Courts under the ordinary law. The infrastructure of the ordinary Criminal Courts exists in the areas in question.
12. Regulation II as amended, which provides special procedure for settlement of disputes of civil nature, excludes from its purview, the cases in which the interest of a minor or of a person of unsound mind is involved; cases where provisions for arbitration have been made in a contract between the parties and cases by or against the Federal or the Provincial Government or a Public Corporation or a public servant acting in the discharge of his duty. The cases so excluded are tried in ordinary Courts under the ordinary laws as prevalent in other parts of the Province. The Civil Courts are functioning in the area in question as the Civil Courts Ordinance was extended to the said areas alongwith Civil Procedure Code and the Evidence Act.
13. With dual system working, both in the field of criminal justice and settlement of disputes, as stated above, there is no need for explaining the general features of our ordinary judicial system but the main features of the impugned provisions of of Regulations I and II are to be briefly stated before we can determine the question of discrimination raised by the petitioners. The investigation into an offence committed in the areas where the impugned Regulations have been made applicable is carried under the provisions of Criminal Procedure Code. The Investigating Agency faithfully carries its investigation according to the letter of the Criminal Procedure Code and when concluded places the challan before the Deputy Commissioner in cases falling within the provisions of Regulation I. The moment the Deputy Commissioner takes cognizance of the case, which is also possible on the complaint of any person, he activates the machinery for the trial of offences so reported to him as provided by the said Regulation. The Code of Criminal Procedure from then onward is excluded and the same is the case of the Evidence Act. The question of guilt or innocence of the accused is referred to Jirga. The Jirga consists of the Government official not below the rank of Tehsildar, which includes NaibTehsildar, who shall be its President and four other members all to be appointed by the Deputy Commissioner. The opportunity of hearing is provided by the Jirga to the parties and the Jirga may record evidence as well but may refuse to do so in its own discretion if in,its opinion the same is being tendered for the purpose of causing vaxation or delay or for defeating the ends of justice. The findings of the Jirga are then submitted to the Deputy Commissioner in the form of a report. Upon receipt of such findings of the Jirga, the Deputy Commissioner has the following options. He may remand the question to the Jirga if he is of the opinion that the Jirga has not given a finding on the question referred to it or there has been material irregularity or miscarriage of justice. In case the Jirga unanimouly or by majority of 4/5th gives a finding of guilty, the Deputy Commissioner may either convict and pass sentence on, or acquit the person or persons so found guilty (section 11(3)). If the Jirga unanimously or by a majority of 4/5th reports a finding of not guilty, the Deputy Commissioner shall, if he does not remand the case to the Jirga, acquit the person or persons so found not guilty. Where the Jirga reports the finding either of guilty or of not guilty by a majority of less than 4/5th, the Deputy Commissioner shall, if he does not remand the case to the Jirga, acquit the accused person or persons (section 10). The Deputy Commissioner has been empowered to pass sentence on a person convicted as prescribed in the Pakistan Penal Code for the offence committed by him. But he cannot pass the sentence of death. The appeal lies to the Commissioner of the Division and the Government of N.-W.F.P. Has the revisional powers. Regulation II which deals with the civil disputes also gives Deputy Commissioner the powers to entertain the dispute and if filed within time he refers the same to a Jirga. The constitution of the Jirga is the same as that of the Jirga constituted under Regulation I. The Civil Procedure Code and the Evidence Act are not applicable in proceedings before the said Jirga. On receiving the findings of the Jirga the Deputy Commissioner may remand the matter for reconsideration of the Jirga in certain circumstances. If the finding of the Jirga is unanimous or by a majority of its members and the Deputy Commissioner does not wish to remand the case back he shall decide the dispute and pass a decree in accordance with such findings (section 10). Appeal lies to the Commissioner of the Division concerned and the revisional powers are given to the Government of N.-W.F.P.
14. It is contended that the provisions of Regulations I and II, as reproduced in the preceding paragraphs, are violative of Article 25 of the Constitution which reads as follows:-- "25. Equality of citizens.--(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provisions for the protection of women and children."
' Thus the fundamental right ensures the equality before law which is a British concept and equal protection of law which has been enshrined in the 14th amendment of the U.S. Constitution. The principle that every one is equal in the eyes of law and no one is above law coupled with lack of arbitrariness is the edifice of Rule of Law. Justice through ordinary Courts for high and low was not only believed to be the basis of English Judicial system but has been championed by British Jurists since Dicey despite several inroads made thereto. The 14th amendment to the U.S. Constitution issued a mandate to the States to provide equal protection of laws. From its initial narrow interpretation, namely, in civil rights cases, the U.S. Supreme Court has in recent times extended its scope to other fields as well. Indian Constitution has also incorporated both the concepts i.e, the equality before law and equal protection of law. The Indian Superior Courts have applied the concept of equal protection of law in every conceivable field of human activity including the administration of justice and the application of procedural law. They were mainly inspired by the pronouncements of American Judges. In certain lucid periods of our otherwise eratic polity, Pakistan Superior Courts have also expounded the concept of equal protection of law, mainly on the principles enunciated by the U.S. Supreme Court.
15. In its nutshell, the concept, as it stands today, means the protection of equal laws. It means that "no person or class of persons shall be denied the same protection of law as is enjoyed by other persons or other classes in the same place and in the like circumstances". Inequality is permissible if the same is based on classification which in turn must be reasonable and must not be arbitrary.
Again such a classification must be based on a defined criterion and must have a nexus with the objective for which the classification has been necessitated. But "the mere fact of classification is not enough to put the Statute beyond the equality provision of the Fourteenth Amendment U.S.A.
Const. In order to violate that provision, the classification must be actually and palpably unreasonable and arbitrary. The mere production of an inequality is not enough". (Radice v. People of State of New York 44 S.GT 325, US 292, 68 L.Ed 690). In advisory opinion re the Special Courts Bill (1979) 2 SCR 476, the Supreme Court of India summed up the above principles by stating, "(i) that the classification must be found on an intelligible differentia which distinguishes those that are grouped together from others and, (ii) that the differentia must have a rational relation to the object sought to be achieved by the Act".
16. The special procedure in the form of a Jirga as incorporated in Regulations I and II is provided to the inhabitants of certain areas which are part of the Province of N.-W.F.P. The said areas have equal status with other districts of N.-W.F.P. Both politically and administratively. As stated earlier, the regular substantive and procedural laws both civil and criminal which are enforced in rest of the Province have been applied to the said areas. Whether we can make a classification of those whose disputes are being settled and whose offences are being tried under the provisions of impugned Regulations on or any intelligible differentia which distinguishes them from those who are being benefited by the ordinary laws of the land and the ordinary Courts, is a material question before us. Within the area itself, the offences which have been excluded from the purview of the special procedure provided by Regulation I of 1975 make no sense except that the said offences involved the State or its functionaries. Such a distinction can hardly be called reasonable. On the other hand, if the State and its functionaries have no confidence in the competence of a Jirga then why the ordinary citizens are left to its mercy. Such a treatment is not only against the guarantee of equal protection of law but also infringes the equality before law. Similarly, the minor, insane and the Government have been given the benefit of protection of ordinary law of the land whereas the rest of the citizens are to seek redress of their grievances through the executive authorities of the districts from a Jirga comprising of a Government official and laity. Again such a classification within the area has no rational basis and on the contrary it reflects lack of confidence in trial by jirga. On the larger plane, the citizens of the area in question are being denied all the cherished principles of a criminal trial as well as the settlement of their civil disputes for no reason whatsoever. Preambles to both the Regulations do not give any objective for providing special procedure and special forum to those affected. It is simply stated therein that the special provisions are being made "to meet the special requirements of those areas". We are not made aware of those special requirements. As a brief history of the former States has already been given in the preceding paragraphs, it is worth noting that both in Swat and Dir there was no Jirga system even prior to their merger with N.-W.F.P. They had their own system of judicial administration. Swat was being governed by customary law and there was a department of QAZIS apart from the hierarchy of officials administering justice. Similarly, Dir had a complete code called "Dastoor-ul- Amal". After the merger not only in Swat and Dir, but in the entire Provincially Administered Tribal Areas which have now been brought within the purview of the Regulation the ordinary laws both criminal and civil were made applicable. With the introduction of Criminal Procedure Code and Evidence Act in the year 1970 and later on with the introduction of Civil Courts Ordinance and Civil Procedure Code, the inhabitants of the said areas passed peacefully into the age of rule of law. For nearly four years, the Courts functioned with the procedure as is available in rest of Pakistan.
Therefore, it is not comprehensible as to what were the special requirements which were being met by making the impugned Regulations. Not only that there is no basis for the classification for the application of the special procedure as laid down in the impugned Regulation to a certain number of citizens as against rest of the citizens in the Province but the classification which ought to have nexus with the object sought to be achieved by the legislation has no object at all. We may not look for any rational relation of the differentia as there is neither an intelligible differentia nor is there any object to establish a nexus between the differentia and the object.
17. There is another aspect of the discrimination being practised against those who are subjected to the impugned provisions of Regulations I and II. The confusion and the subsequent delay owing to such confusion is the hall mark of both the Regulations. This Court in the past so many years has been inundated with the Constitutional petitions filed by the inhabitants of the said areas, bewildered and dismayed not only because of the obvious judicial incompetence of the Jirga and the administration but owing to numerous anomalies which have crept in by excluding certain offences from Regulation I. In the dual system of adjudication where the ordinary Civil Courts are functioning within their assigned spheres some of the anomalies may be spotlighted. A case registered under regular law including the Hadood Ordinance and local and special laws so extended to the areas, has to be tried by different forums. The bifurcation of offences under the Pakistan Penal Code between those to be tried by the Jirga and those tried by the ordinary Courts has resulted in difficult situations for those affected. For example, the lawyers complained that in the past person charged for murder under section 302, Pakistan Penal Code was tried at one forum and for offences under section 148/149, P.P.C. At another. The possibility of conflicting judgments in some of the cases is always there. There is no provision of pre-arrest bail under Regulation I whereas the same could be obtained in offences precluded from the purview of said Regulation.
No death sentence is provided for capital offence under the Regulation. The confusion has been worst confounded when the Criminal Procedure Code is available to the Investigating Officer but the same has been excluded from the proceedings before the Jirga. There are worst aberrations in the working of Regulation II for the settlement of disputes of civil nature. The case where the interest of a minor is involved is to be tried by the ordinary Court but as it may happen, a minor grows into major during the proceedings and the said Court may refuse to exercise its jurisdiction over the cause. Similarly, if a litigant before Jirga dies during the proceedings and he leaves behind minor children, the Jirga may cease to proceed with the case. The Statutes which carry their own provisions of limitation like the Pre-emption Act which have been made applicable to the areas in question may come in seemingly unresolved conflict with the provisions of Regulation II which takes cognizance of custom and usage for the purpose of limitation. The Revenue officers and the Revenue Courts are also functioning in the said areas. Part of the subject matter of their jurisdiction has been handed over to Jirga which leaves the lawyers and litigants in quandary. These were some of the examples to illustrate the denial of certainty of law and predictability of justice to the petitioners before us. Such a denial obviously leads to inequality before law and militates against the concept of equal protection of law. Such an inequality is aggravated by the fact that for the petitioners the local administration and not so educated members of Jirga are being preferred to trained judges who are sitting and working in the areas they belong. Such a treatment cuts deeply at the cherished principles of constitutionally mandated separation of Judiciary from Executive.
18. Qazi Mohammad Anwar, the learned Advocate-General, urged that no mala fides could be attributed to the legislature. Neither the same has been canvassed before us nor we propose to do so. To test a piece of legislation on the touchstone of a Fundamental Right does not necesarily involve the mala fides of the legislature. Furthermore in the present case we are not concerned with it and we have simply examined the inpugned provisions of the Regulations in their application to the petitioners to determine the violation or otherwise of Article 25 of the Constitution. As for the arguments that the Regulations provide procedural law and no one has vested right in such a law, one should not be unmindful of the fact that the Regulations also provide forums for adjudication of cases within the purview of the Regulations. Secondly, a rule of procedure cannot be excluded from the scope of Article 25 of the Constitution as every citizen is entitled to the availability of same procedural avenues of relief, prosecution or defence, as are provided to others in the like circumstances. The concept of due process of law includes substantive law and procedural law both. Any discrimination in the procedure for settling disputes or dealing with the offenders against a certain class of people or residents of a locality may in certain circumstances offend against Article 25 of the Constitution.
19. Mr. Saif-ur-Rehman Kiyani, learned Deputy Attorney-General argued that the Regulations were improvements over the past in the matter of administration of justice in the concerned area. Not only that his arguments are not relevant in the context of the present case but his assertion is also open to question in view of the historical background, already described briefly in the preceding paragraphs, of judicial system in the area concerned. It is specially so when we notice that immediately prior to the making of the Regulations the regular laws both substantive and procedural were extended to the area concerned, and the ordinary Courts were functioning both in civil and criminal fields.
20. Mr. Abdus Samad Khan, learned counsel for a private respondent in one of the petitions gave a strange interpretation to the non-obstante clause of Article 25(4) of the Constitution, stating that the same has barred the availability of Fundamental Rights to the inhabitants of the area in question. The argument is basically fallacious. Suffice it to point out in this regard that the said clause is only confined to the contents of sub-Article (4) of Article 247 which empowers the Governor to make Regulations. It pre-empts any move to challenge the vires of legislation made by the Governor in the exclusive field of the Provincial legislature assigned to it by the Constitution.
Fundamental Rights are entrenched in the Constitution for every citizen and in some cases every person residing in Pakistan and they are guarantees against the excesses of all branches of Government including the legislature, be it the Governor or the Provincial Assembly. As for the arguments that the people in the area were not happy with the ordinary Courts and the present system is working satisfactorily, we shall only refer to the report of Justice Allah Bakhsh Khan, who in 1981 was commissioned to gauge the public opinion and to find out the feasibility of the enforcement of the normal laws in the Provincially Administered Tribal Areas. The report did not see the light of the day but the learned Advocate-General was kind enough to provide us with a copy of the same. Justice Allah Bakhsh Khan after recording the opinions of a cross section of people and noting the obvious defects and the discrimination germane to the procedure provided by the Regulations of 1975 recommended their repeal. He concluded:-- "It would, therefore, be in the interest of national integrity that uniform civil and criminal laws are enforced in the District of Dir, Swat and Chitral as well as the Malakand protected area and the entire Division is brought at par with the other parts of the country in the field of administration of justice. The `Riwal has outlived its utility and the people of this Division deserve to get rid of the evils of `Riwaf which were perpetuated during the tyrannical rule of the despotic Nawab.........
' It is, therefore, recommended that in view of the real need of the hour and in the interest of national integrity, the PATA Regulations enforced in the District of Dir, Swat and Chitral be replaced by the normal laws of the country and the entire Provincially Administered Tribal Area be brought at par with the other parts of the land."
' The report is dated 15-11-1982 and it is unfortunate that valuable recommendation of a Judge of the High Court has been kept in the cold storage so far.
21. In the light of what has been stated above, the impugned provisions of Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation (Regulation No,1 of 1975), as amended, laying down procedure for trial of offences mentioned therein and the remedies provided thereto are declared as violative of Article 25 of the Constitution. Resultantly the trials under the said Regulation of the accused in Petitions Nos.417/89, 442/89, 401/89 and 28/90 are quashed. It is directed that they be put to trial before a Criminal Court of competent jurisdiction. Similarly, the impugned provisions of Provincially Administered Tribal Areas Civil Procedure (Special Provisions)
Regulation II of 1975, as amended, providing procedure for settlement of disputes are declared as violative of Article 25 of the Constitution and, as such, the Jirga under the said Regulation shall cease to exercise jurisdiction over the dispute involved in Constitutional Petition No,495/89 and it is directed that the same be transferred to a Civil Court of competent jurisdiction. In the circumstances of the case, there shall be no order as to costs.