' NASIR-UL-MULK, J.--In this Constitutional petition Abdul Badshah, a Government servant and permanent resident of Zakakhel, Frontier Region, Peshawar, located in the Federally Administered Tribal Area, has questioned a custom/usage existing in the Region by which his land was sold to pay the loan outstanding against one Islam Badshah as he was the petitioner's relative. The petitioner has prayed that this so-called Rewaj of the area be struck down as violative of the fundamental rights. The petitioner had in the first instance filed a petition before the Federal Shariat Court which was turned down on account of lack of jurisdiction. Next he invoked the jurisdiction of the Hon'ble Supreme Court under section 184(3) of the Constitution but the same was dismissed as withdrawn as the petitioner wanted to file a Constitutional petition before this Court; which now he has done.
2. Comments to the petition were submitted by the Deputy Commissioner/Political Agent Frontier Region, Peshawar, respondent No,1 in which the existence of the Qaumi Rewaj in question was confirmed but it was pleased that the respondent was in no position or empowered to bring about any changes in the Rewaj of the Area.
3. On the question of jurisdiction of this Court the petitioner contended-that since the fundamental rights were available to the residents of the Tribal Area this Court was invested with jurisdiction under Article 199 of the Constitution to examine as to whether the impugned Rewaj was not inconsistent with, and violation of the fundamental rights, notwithstanding the exclusion of the jurisdiction of the Supreme Court and the High Court under clause (7) of Article 247 of the Constitution in matters relating to the Tribal areas. He placed reliance upon the opinion of Hon'ble Mr. Justice Salahuddin Ahmad, J. In the case Ch. Manzoor Ilahi v. Federation of Pakistan PLD 1975 SC 66 appearing at page 116 where, after determining that fundamental rights were available to the residents of the Tribal area, it was held that the provisions of the Constitution regarding the fundamental rights of the jurisdiction of the Supreme Court and a High Court to enforce them are not controlled by Article 247(7) of the Constitution of 1973.
4. The learned counsel representing the respondent relying upon the judgment of the Supreme Court of Pakistan in Qaum Bangash v.Qaum Tori 1991 SCM R 2400 contended that since the property which has been confiscated under the impugned Rewaj was situated in the Tribal Area and the petitioner as well as the vendee of the land are also residents of Tribal Area the Constitutional jurisdiction of this Court stands excluded under _clause (7) of Article 247 of the Constitution.
5. Undoubtedly the property of the petitioner confiscated under the Rewaj is situated in the Tribal Area and the Rewaj/custom in question is prevalent in the Tribal Area, of which the petitioner is permanent resident. The Supreme Court in the case of Qaum Bangash v. Qaum Tori (ibid), has laid down that the jurisdiction of the High Court in matters relating to Tribal Area has been excluded by virtue of clause (7) of Article 247 of the Constitution and that if the subject-matter of the dispute was immovable property located in the Tribal Area and the parties belong to that Area the matter would be covered by the expression "in relation to a tribal area" and the dispute would thus be excluded from the jurisdiction of the High Court. On the touchstone of this rule the jurisdiction of this Court clearly stand excluded in the matter agitated by the petitioner.
6. The observation made by the Hon'ble Mr. Justice Salahuddin Ahmad, J. In the case of Ch. Manzoor Elahi, (ibid), would not be of much help to the petitioner for more than one reason. In that case, the detention of Ch. Manzoor Elahi in the Tribal Areas of Quetta Division in the Province of Balochistan was challenged under Article 184(3) of the Constitution 9f Pakistan, 1973 and as regards jurisdiction, the question was whether the restoration of the jurisdiction of the High Court and the Supreme Court to the Tribal Areas of Quetta Division by Act II of 1964 passed by the National Assembly pursuance to Article 223, Clause (5) of the 1962 Constitution could be considered as a valid extension under the Constitution of Pakistan, 1973 or a new extension by the President under Article 247(7) of 1973 Constitution was essential for its continued validity. It was held that the restoration of the jurisdiction of the High Court and the Supreme Court under Act II of 1964 continued in operation even after the promulgation of 1973 Constitution and no separate extension was required under the new Constitution. The Hon'ble Mr. Justice Salahuddin Ahmad, J.
Went on to observe that the jurisdiction of the Supreme Court and the High Court to enforce fundamental rights were not controlled by Article 247(7) of the 1973 Constitution. This observation has been quoted by the petitioner out of context as in the paragraph at page 116 of the judgment where this observation has been made the Hon'ble Judge was commenting upon the fundamental rights in respect of a person residing outside Tribal Area, arrested outside the Area and not subject to the Tribal Area usage or custom. In this context 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 High Court is powerless to come to the rescue of a person whose fundamental rights has been flagrantly violated within the territorial jurisdiction. In the present case, none of the acts complained of by the petitioner has taken place within the territorial jurisdiction of the High Court. In any case, the opinion of the Hon'ble Judge of the Supreme Court was a minority view as the other three Hon'ble Judges hearing Manzoor Elahi's case did not dilate upon this proposition after having held that the jurisdiction of the High Court and Supreme Court stood extended to the Tribal area of Quetta Division by virtue of Act II of 1964.
Finally, the judgment of the Supreme Court in the case of Qaum Bangash v. Qaum Tori which is later in time settles the law regarding jurisdiction of the High Court and the Supreme Court in relation to the Tribal Area. And as discussed above, on the facts alleged by the petitioner, the matter relates to the Tribal Area and the jurisdiction of this Court stands excluded.
7. For the foregoing reasons, the writ petition is not maintainable on account of bar on the Constitutional jurisdiction of this Court under Article 247(7) of the Constitution of 1973. The writ petition is accordingly dismissed with no order as to costs.