' FAZAL ILAHI KHAN, J.---In these two Writ Petitions Nos. 10 of 1988 (Nabi Bakhsh v. The State and 8 others) and 13 of 1988 (Saghir Ahmad Khan v. The State and 4 others), similar questions of fact and law are involved, we, therefore, propose to dispose of both of them by this single judgment.
2. In W.P.No,10 of 1988 the facts are that respondents 4 and 5, namely Gulla Jan and Akbar Khan were running a business of selling vehicles on instalment basis at Tank while the petitioner was having the business of Body-Building of such vehicles at Tank. Both the parties had very cordial business relations, however, there had been some misunderstanding due to non-adjustment of some of monthly instalments which ultimately led to the respondents' denial to make payment of the outstanding amount of Rs, 32,098 to the petitioner. When the petitioner was pressing for the payment respondents 4 and 5 approached the Assistant Political Agent Ladha South Waziristan Agency, at Tank and was successful in getting summons issued to the petitioner in a matter relating to the claim of Rs,1,00,000 against the petitioner. On the petitioner's appearance in response to the summons he was forced to thumb impress the paper in which respondents 6 to 8 were given out to be the Jirga members for the settlement of the dispute. Having come to know of the high- handedness of the Political Authorities, who lacked jurisdiction in the matter, the petitioner has approached this Court in Constitutional jurisdiction for the declaration as prayed for.
' In W.P. No,13 of 1988, the facts are that Saghir Ahmad Khan was the land-owner in Mauza Kurai, Tehsil and District Dera Ismail Khan, whereas Haji Saeed Khan, respondent No,4 runs a brick-kiln since long. It was on 8-1-1975, I that the petitioner, respondent No,4 and one Ghulam Rasool entered into written partnership of brick-kiln business on the terms that all the three would contribute Rs, 50,000 each for starting the business of brick-kiln in Mauza Kurai, Tehsil and District D.I.Khan. It was decided that in lieu of his share the petitioner would provide 60 kanals of land alongwith other similar formalities while the other two namely Haji Saeed Khan respondent No, 4 and Ghulam Rasool would contribute their respective shares in cash. The profit was to be shared proportionately as given in the agreement deed. The parties were running business smoothly till 2- 2-1985, when respondent No,4 yet entered into another agreement with the petitioner to the effect that the petitioner mortgaged his 2/16th share in the aforementioned business at Rs,50,000 with a condition that on re-payment of Rs,50,000 to respondent No,4, his 2/16th share in the brick-kiln would stand redeemed. It so happened that after a year Ghulam Rasool left D.I.Khan whereupon respondent No,4 placed the account books in respect of the business of brick-kiln before an arbitrator who after hearing the parties gave his award. In the award the petitioner was directed to pay Rs,5,000 to respondent No,4 and Ghulam Rasool was bound down to pay Rs,40,000 to respondent No,4. After the settlement of account of the partnership business between the parties through arbitrator, the land meant for the brick-kiln i,e, its surface upto the depth of three feet was rented out by the petitioner to respondent No,4 at the yearly rent of Rs,85,000 (Rs,25,000), through a deed executed on 2740-1985. Respondent No,4 paid the rent for a year and then stopped the payment whereupon he was served with a notice for payment of rent due else to face legal consequences. Negotiations were going on between the parties when the petitioner received a summon from the Assistant Political Agent, Ladha South Waziristan Agency Tank on the application of respondent No,4 in which the petitioner was charged for an offence under section 406/420/468, P.P.C. And 11 F.C.R. The petitioner was then arrested on 14-5-1988 by the local police D.I.Khan and has been sent to judicial lock-up for compliance of the provisions of section 86-A, Cr.P.C. Where his application for bail was rejected hence the present writ petition.
3. In both these cases comments have been filed by the Assistant Political Agent alone and the private contesting respondents did not controvert the averments in relation to factual aspect of the cases in both these petitions by filing their written statement. The Political Authorities, however, simply asserted that the transactions have taken place in Ladha. Such assertion is for no other purpose than to usurp the jurisdiction of the ordinary Courts of law which assertion is belied by the very agreement deed placed on file in the case of Saghir Ahmad Khan v. The State etc. To which no exception has been taken. Even otherwise the business of brick-kiln is run by the parties over the land situated in Mauza Kurai Tehsil and District D.I.Khan. It is also on the record that before entering into partnership an agreement deed was executed in the settled area and subsequently on the termination of partnership the parties settled their account through an arbitration. Subsequently the land in question was leased out on yearly rent to the contesting respondent which fact is borne out by the documentary evidence which stands unrebutted. The mere fact that one of the parties to the dispute originally belonged to Tribal Area would not confer jurisdiction on the Political Authorities nor take away the jurisdiction of the ordinary Civil and Criminal Courts within whose jurisdiction the subject-matter of the dispute situates, the transaction has taken place, the parties reside or the cause of action has arisen. Moreso the forum provided in the latter case satisfies the basic and fundamental requirement of law in administration of justice.
4. The provisions of Article 247(7) of the Constitution of the Islamic Republic of Pakistan, 1973, relied upon by the learned counsel for the private respondents has been duly considered in its true perspective, by their Lordships of the Supreme Court of Pakistan in Ch. Manzoor Elahi v. Federation of Pakistan etc. (PLD 1975 SC 66). His Lordship Justice Salahuddin Ahmad, J. In the context of the import of the above Article observed as follows:-- "For the reasons stated above I hold that the words 'in relation to a Tribal Area' under Article 247(7) of the present Constitution are not comprehensive enough to include the contravention of a Fundamental Right in respect of person residing outside a Tribal Area, arrested outside the Area and not subject to the Tribal usage or customs. Consistent with the aforesaid principles governing the interpretation of a Constitutional instrument, the words 'in relation to the Tribal Area' in my opinion, have reference to matters covered by the provisions of clauses (1) to (6) of Article 247 that precede clause (7) thereof.
' It was further observed that: "It would, indeed, be anomalous and absurd that while the arm of an authority in a Tribal Area is long enough to reach the person residing outside the area, the Supreme Court or a High Court is powerless to come to the rescue of a person whose Fundamental Rights have been flagrantly violated within its own territorial jurisdiction."
For the reasons stated above we have no hesitation in holding that on facts and circumstances of the case the Political Authorities had no jurisdiction in both these matters and that they have acted in colourful exercise of their powers for usurping the powers of the ordinary Civil and Criminal Courts by compelling them to be subjected to their jurisdiction which did not vest in them. We would, therefore, allow both these writ petitions as prayed for. There shall be no order as to costs.