1. ZAFFAR HUSSAIN MIRZA, J.---This appeal arises by leave from the judgment of a Division Bench of the Peshawar High Court, Peshawar, dated 9th January, 1983, dismissing the Constitutional petition filed by the appellants seeking the quashment of the order of Commissioner, Peshawar Division dated 28th September, 1980 and the order of Political Agent, Kurram dated 30th June, 1980.
2. The impugned judgment comprises of two sentences without any reasons or narration of facts as under: "In view of the authority reported in PLD 1981 Peshawar 57 "Syed Shah v. Political Agent Bajaur Agency", this writ petition is dismissed. No order as to costs."
3. The facts as disclosed in the petition before this Court may however be stated in brief as under: There was a dispute between the Bangashes of Bagzai, the appellants herein and the Turi Hamza Khcl, Mastu Khel etc. The other tribes, the respondents herein, over an unmeasured shamilat area which resulted in a firing incident on 1st August, 1978 in which one Aziz Ali lost his life and 3 persons sustained injuries. A case was registered against both parties. Emanating from the first incident a chain of disputes took place in which violence was also used inter se by the members of the two tribes on various dates between 1st August, 1978 to 15th December, 1979.
4. As the disputes/offences arose out of the same-cause on 25th December, 1979 the Political Agent, Kurram Agency, with the consent of the parties referred all the cases (both criminal and civil) to Council of Elders consisting of 4 members to enquire and give their recommendations in respect of issues framed by him. After the necessary enquiries the Council of Elders submitted their unanimous recommendations on all the issues referred to them vide their Award dated 4th May, 1980. The Political Agent vide his order dated 3rd June, 1980 confirmed the Award and passed an order on the basis thereof.
5. Being aggrieved by the aforesaid order the appellants filed a revision application which was subsequently disposed of by the Commissioner F.C.R. (FR) Peshawar Division, Peshawar, who dismissed the same by his order dated 28th September, 1980.
6. The appellants then filed Constitutional petition before the Peshawar High Court, Peshawar (Writ Petition No. 589 of 1980) challenging the order of the Political Agent, Kurram Agency dated 30th June, 1980 and the Commissioner Peshawar Division dated 28th September, 1990, which was dismissed by the impugned judgment.
7. Leave was granted in order to consider the contentions as under:
(i) that the jurisdiction of the High Court, extends to the tribal areas;
(ii) that the High Court was in error in not hearing the appellants
(iii) that the Commissioner, Peshawar had no jurisdiction to withdraw the revision from the file of Additional Commissioner before whom the revision was filed and to decide the same himself as he had no jurisdiction to hear and decide it vide Notification dated 21st December, 1966 issued under section 2(c) of the Frontier Crimes Regulation.
8. It may be stated that the present appeal was heard alongwith several other appeals, including Civil Appeal No. 144 of 1981 (Malik Taj Muhammad v. Bibi Jano), as a. Common Constitutional question regarding the exercise of writ jurisdiction of the High Courts in respect of the tribal areas arose for decision therein. The main arguments were addressed by the learned counsel in the aforesaid Civil Appeal No. 144 of 1981.
9. In this appeal Mr. S. Akhunzada Baharwar Saeed, learned counsel appearing for the appellants adopted the arguments of Mr. Sami Hayat who appeared for the appellant in Civil Appeal No. 144 of 1981. He further submitted that the Federally Administered Tribal Areas in which Kurram Agency is included, is a part of Pakistan and accordingly the Constitution is applicable to whole of Pakistan, so that the said tribal areas would also be subject to the jurisdiction of the Supreme Court and the High Courts.
10. The Constitutional question considered in the said Civil Appeal No. 144 of 1981 was whether in the facts and circumstances of that case the jurisdiction of the Baluchistan High Court extended to the tribal areas where the disputed land was situated, namely, District Zhob of the Province of Baluchistan, which is incidentally included in the Provincially Administered Tribal Areas. In the said appeal which was decided on 8th August, 1991 Shafiur Rahman, J., who wrote the judgment for the Court, has traced the history of Constitutional provisions with regard to the extension of the jurisdiction of the Superior Courts in respect of the tribal areas from 1955 until 10th April, 1964. In this behalf, reference was made to section 7 of the Establishment of West Pakistan Act, 1955, whereby the newly constituted High Court was conferred jurisdiction in respect of the entire Province of West Pakistan, including the tribal areas of the former Provinces of Baluchistan, the Punjab and the N.- W.F.P. And certain States which were merged into the new Province of West- Pakistan; the Establishment of West Pakistan (Amendment) Act, 1955 effecting amendment in subsection (1) of section 7 of the main Act, with the result that the jurisdiction of the High Court was excluded from the tribal areas, Presidential Order No. 11 of 1961 the effect of which was to restore the jurisdiction of the High Court in the special areas and the 1962 Constitution which again took away the jurisdiction of the High Court in respect of the tribal areas. Reference was then made to the Constitution (First Amendment) Act, 1963 whereby clause (5) was added to Article 223 of the 1962 Constitution, which is in pari materia with the main enacting part of clause (7) of Article 247 of the Permanent Constitution of 1973. The effect of this amendment was that neither the Supreme Court nor a High Court could exercise any jurisdiction under the Constitution relating to tribal areas, unless the Central Legislature by law otherwise provides. With reference to Act II of 1964 called the Tribal Areas (Restoration of Jurisdiction) Act, 1964, which was enforced on 10 April, 1964 it was pointed out that the jurisdiction of the superior Courts was restored in relation to tribal areas of the Quetta Division.
11. It was in this background that this Court held in the said appeal that in 1960 when the jurisdiction of the Baluchistan High Court was invoked there was no Constitutional jurisdiction available to the said High Court in respect of the territories where the land in dispute in that case was situate. From the aforesaid Constitutional instruments to which reference has been made, it would appear that the Peshawar High Court with which we are presently concerned was denuded of jurisdiction under clause (5) of Article 223 of the 1962 Constitution as from 27th January, 1964. Act II of 1964 only restored the jurisdiction of the Supreme Court and the High Court of West Pakistan in regard to the tribal areas of Quetta Division, so that the said Court did not possess jurisdiction under the Constitution in relation to the tribal areas of Province of N.-W.F.P. And the former States of Amb, Chitral, Dir and Swat. It appears that the next Constitutional instrument, in this behalf, to, be noted is President's Order 28 of 1970 called the Supreme Court and the High Court (Extension of Jurisdiction to Tribal Areas) Order, 1970 Article 2 whereof provided that the Supreme Court of Pakistan shall have, in relation to tribal areas of Chitral, Dir, Kalam, Swat and Malakand protected area (all forming part of Provincially Administered Tribal Area), the same jurisdiction to hear and determine appeals from orders or sentences of the Peshawar High Court in criminal cases as it has in relation to the other areas of North-West Frontier Province. Article 3 of the Order extended the jurisdiction of the Peshawar High Court in relation to the same tribal areas so as to confer appellate jurisdiction and the power to confirm death sentences passed by Court of Session as it has in relation to other areas of N: W.F.P. Under the Criminal Procedure Code. The said P.O. No. 28 of 1970 was repealed and re--enacted on 9th February, 1973 as Act No. XXVII of 1973 with the title Supreme Court and High Court (Extension of Jurisdiction to Certain Tribal Areas) Act, 1973. Clause (7) of Article 261 of Interim Constitution of 1972 provided as under: "(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."
12. It would therefore be seen that the Peshawar High Court did not possess jurisdiction over any of the Federally Administered Tribal Areas even after the promulgation of P.O. No. 28 of 1970 or Act No. XXVII of 1973. Kurram Agency comes within the "Federally Administered Tribal Areas" according to the definition of the term in Article 260 of Interim Constitution and Article 246 of 1973 Constitution jurisdiction with regard to which continued to be excluded by' virtue of clause (7) of Article 261 and Article 247 of the two Constitutions respectively which are identical provisions.
13. No other enactment was brought to our notice extending the jurisdiction of the Peshawar High Court to the area in question, namely, Kurram Agency forming part of the Federally Administered Tribal Area. Therefore, it appears that the Peshawar High Court did not have jurisdiction under the Constitution in relation to the Federally Administered Tribal Areas until 1980 when the Constitutional petition was instituted by the appellants in this case. This appears to be the position as found in Muhammad Afzal v. Assistant Political Officer (1985. P Cr. L J (Karachi) 1784) and Khalid Pervez v.
14. Federation of Islamic Republic (PLD 1987 Lah. 323).
15. The next question to be considered is whether notwithstanding the fact that the disputes referred to the Council of Elders related to land and the occurrences resulting in death and injuries to certain persons took place at Kurram Agency, and the basic order accepting the Award of the Council of Elders was passed there, since the other order of the Commissioner, F.C.R. Was passed at Peshawar in the settled area within the jurisdiction of the Peshawar High Court, the said High Court would have jurisdiction to entertain aConstitutional petition in respect of the case. This questionth also stands answered by the judgment in Civil Appeal No. 144 of 1981, already referred to. It was held ' in that case as under: "In this case, the subject-matter of the dispute was immovable property and rights therein. These were located in the tribal area. The authorities which dealt with the matter were empowered to deal with such matters as pertaining to tribal areas. In the circumstances, the substantial cause of action and the subject-matter of dispute would be located in the tribal area and not in the settled area merely because such an order was passed."
16. In Abdul Rahim and others v. Home Secretary, Government of West Pakistan and another (PLD 1974 SC 109), in somewhat similar circumstances, it was held that the expression "in relation to Tribal area', which expression also occurs in clause (7) of Article 247 of present Constitution, is not an expression of art with a defined meaning, but has a wide import and "postulates of a connection of one thing with another, a nexus". In a dispute with regard to land, it was held that the situs of the land and the residence of the two sets of claimants were decisive in the matter whether the matter related to tribal area. Also the fact that final order was passed by the Home Secretary at a place in the settled area, was found not to snap the relationship of the dispute with the tribal area. These principles are fully applicable to the present case in which the dispute related to land situated at Kurram, the criminal offences took place in the territorial area comprised therein I and the parties also resided within the tribal area. Consequently on this score also the Peshawar High Court did not acquire jurisdiction in this matter.
17. As regards the argument that Federally Administered Tribal Areas form part of Pakistan, therefore they would be subject to the jurisdiction of the superior Courts, it is sufficient to state that under clause (7) of Article 247, the Constitution has expressly excluded the jurisdiction of these Courts in relation to the Tribal Area, unless the Parliament by law otherwise provides. As discussed above there is no Act of Parliament providing otherwise in respect of the Federally Administered Tribal Areas of N.-W.F.P. And the superior Courts did not exercise jurisdiction in such areas immediately before the commencing day oft the Constitution. The contention is therefore devoid of merit.
18. In the view that we have taken as regards the jurisdiction of the High Court, it is not necessary to decide the third contention noted in the Leave Granting Order. In the result this appeal fails and is accordingly dismissed with no order as to costs.