' TARIQ PARVEZ, J.----The material facts giving rise to the present writ petition are that on 19-2-1990 respondent No.1, Pir Akbar Din, instituted a suit against the petitioners and their father Haji Ghulam Nabi (now dead) for the recovery of Rs,25,000 in the Court of Assistant Political Agent, Upper Orakzai Agency Hangu. The suit was entertained under section 8 of the Frontier Crimes Regulation, 1901 by issuing summons to the petitioners. Such process was challenged by the petitioners through filing Writ Petition No.139 of 1990 before this Court, inter alia, on the ground that the petitioners are not indebted to respondent No.1 and that they cannot be held responsible for the debt owed by one Bakhtiar their relative. The issuance of summons was also challenged for lack of jurisdiction on part of respondent No.
2. However, the said writ petition was dismissed on 14-10-1990 with direction to the petitioners to apraoch respondent No.2 and may raise objection of lack of jurisdiction as well as may take up their stand on merits of the case.
' The petitioners thereafter appeared before respondent No.2 by filing their written statement, also taking exception to the assumption of jurisdiction but respondent No.2 by assuming jurisdiction on 21-11-1990 constituted a Jirga by referring the dispute to it for adjudication.
' It is alleged in the petition that on 19-1-1990 the said Jirga without associating the petitioners with the proceedings decided that respondent No.1 is entitled to recover the suit amount from the petitioners because Bakhtiar a nephew of petitioner No.1 was proved to be having business transaction with respondent No.1.
2. The verdict of the council of elders (Jirga) was forwarded for approval to respondent No.2 who vide his order, dated 29-1-1991 did not agree with the findings and instead on 30-1-1991 constituted another council of elders. This act of respondent No.2 was resisted by the petitioners by filing two applications, dated 12-2-1991 and 10-2-1991 before respondents 2 and 3 respectively which applications remained undecided. However, the newly constituted Jirga on 19-2-1991 gave its own award which was in fact reiteration of the award given by the first Jirga but with modification that respondents No.1 and two other persons on his behalf shall take oath on Holy Qur'an to the effect that the said Bakhtiar and petitioner No.1 have been living together in one house when the business transactions between respondent No.1 and Bakhtiar was struck.
' The aforesaid award on 3-3-1991 was accepted by respondent No.2 with direction to Jirga members to administer oath to respondent No.1.
' Once again, the petitioner on 9-3-1991 agitated the matter before respondent No.2 by filing an application, requesting to decide the question of jurisdiction first and also submitted that respondent No.1 has failed to prove that any transaction subject-matter of the suit was/has taken place in the tribal area. The said written agitation was not responded and instead the petitioners were directed to deposit the suit amount by 10-4-1991, failing which they will be put in jai], where they shall remain till the recovery of the suit amount.
3. Aggrieved of the order/directions, the petitioners once again filed Writ Petition No.1040 of 1991 before this Court, making challenge to the jurisdiction assumed by respondent No.2 as well as asking for relief for restraining the respondents not to arrest the petitioners till the final conclusion of the Jirga proceedings. This writ was also dismissed with observation that the same is premature with further direction that the petitioners will be at liberty to approach this Court by filing a fresh writ petition, if they feel finally aggrieved of the proceedings. This Court also observed that as there was apprehension of the petitioners about their arrest and as apparently the matter appears to be purely. Of civil nature, therefore, it was expected that respondents 2 and 3 if approached will accord opportunity to the petitioners before any action adverse is taken against.
4. Thereafter the case before the political authorities appears to have gone into the cold storage as for number of dates the case would be adjourned on one pretext or the other when the petitioners constrained under the circumstances filed an application before respondent No.2, seeking permission to the effect that the petitioners be asked to take oath on Holy Qur'an in support of their defence but such request was not acceded to when in the meanwhile Haji Ghulam Nabi father of the petitioners died.
' The order of respondent No.2 passed way back on 3-3-1991 was not acted upon until 10-4-1993, therefore, the petitioners once again approached respondent No.2 to direct the Jirga members for giving effect to order, dated 3-3-1991 but instead respondent No.2 arrested the petitioners and they were sent to jail.
' As the order of arrest was in violation of observations made by this Court on 8-4-1991, therefore, a miscellaneous application for initiating contempt proceedings was moved in this Court alongwith a bail application but the same were dismissed on 13-4-1993.
5. It was on 14-4-1993 when order, dated 10-4-1993 of respondent No.2 was received by the petitioners stating the grounds of their arrest based on making of non-payment of the suit amount by the petitioners as was ordered/decided by the Jirga on 3-3-1991.
6. The case of the petitioners as given in the writ petition and similarly agitated upon at the bar before us is to the effect that respondent No.1 has failed to lead evidence either oral or documentary regarding ineptness of the petitioners to him. Also to prove that the business transactions took place in the tribal area, the cheques and documents produced by respondent No.1 before the Jirga were issued and executed by Bakhtiar with respondent No.1 in Peshawar. Also on the ground that the finding of the Jirga for the recovery of debt of Bakhtiar was to be made from Haji Ghulam Nabi, who has died pending proceedings and that the petitioners surrendered to the jurisdiction of respondent No.2 consequent upon direction of this Court where they were arrested purely in a matter concerning civil dispute that too before a final decree could be passed by respondent No.2.
7. Aggrieved of the proceedings taken so far by respondents 2 and 3, the petitioners have filed the instant writ petition.
8. Learned counsel for the petitioners submitted before us that the petitioners are residents of Peshawar City and have no nexus with the tribal area and are not amenable to the jurisdiction of political authorities under the F.C.R., that, the arrest of the petitioners by respondent No.2 was in utter disregard of order of this Court passed on 8-4-1991, that, respondent No.2 though approached number of times and though observed by this Court on 14-10-1990 and 8-4-1991 but before deciding the question of his jurisdiction over the matter has paid no heed and as such the proceedings conducted by respondent No.2 were in exercise of jurisdiction not vested in it.
'Challenge is -also made to the order of arrest or demand of disputed amount from the petitioners on the ground that no decree has been passed against the petitioners in terms of section 8 of the Frontier Crimes Regulation and order, dated 3-3-1991 of respondent No.2 regarding administration of oath was not complied with and it was, therefore, that since there was no final decree, the petitioners did not file an appeal against it but a revision.
' It is also asserted that the dispute, if any, was between respondent No.1 and one Bakhtair to which the petitioners were not party and even if the award of the Jirga is looked into it has held Ghulam Nabi responsible to make payment on behalf of Bakhtair. Next it was submitted that the petitioners are not residents of the tribal are and the cause of action, if any, accrued to respondent No.1 was within the settled area, therefore, respondent No.2 would have no jurisdiction.
9. In support of his submissions, learned counsel for the petitioners relied on 1991 SCMR 2400, PLD 1960 SC 307, PLD 1967 SC 149, PLD 1969 SC 485, PLD 1971 Posh. 61, PLD 1980 Pesh. 265 and 1981 SCMR 1022 and also PLD 1991 Pesh.10.
10. Learned counsel appearing for respondent No.1 submitted that the jurisdiction has been rightly assumed by respondent No.2, that the provisions of section 8 of the F.C.R. Were rightly pressed into service and as the cause of action has accrued to respondent No.1 in the tribal area of which he is the resident, therefore, the suit was filed before respondent No.2, that, petitioners have submitted to the jurisdiction of respondent No.2 by filing the written statement and they are estopped to raise objection to the jurisdiction of the forum, that, under the rules of Orakazi Agency a relative of the defaulter can be held liable. It was also argued that as the dispute between the parties is a pure question of fact and also the determination if the transaction took place in tribal area or in the settled District requires evidence, therefore, the writ petition is not maintainable. Learned counsel for the respondents relied on 1991 SCMR 2400, PLD 1981 Pesh. 57 and PLD 1969 SC 344.
11. Learned Additional Advocate-General has raised objection to the jurisdiction of this Court over the matters in relation to tribal area within the contemplation of Article 247(7) of the Constitution of the Islamic Republic of Pakistan and it was argued that there is express bar placed on assumption of jurisdiction of the Supreme Court and the High Courts in matters relating to tribal area. Reliance was placed on 1996 CLC (Pesh.) 1702.
12. We have heard the learned counsel for the parties and have gone through the various judgments of the august Supreme Court of Pakistan and different High Courts on the subject of jurisdiction where scope of assumption of jurisdiction within the meaning of Article 247(7) of the Constitution of Islamic Republic of Pakistan and para meteria Articles of the earlier Constitution of Pakistan and other legislative enactments on the subject were considered.
13. We would, therefore, with advantage make reference to the case-law cited at the bar and would sl art from PLD 1960 SC (Pak.) 307 (Piao Gul v. The State) where in a case trial for the offence was held by the Political Agent at Peshawar but judgment was pronounced at Jamrud which is "special area", the Hon'ble Chief Justice, A.R. Cornelius, as he then was, authored the judgment and while distinguishing Dosso's case (PLD 1958 SC (Pak.) 533) held that as all the proceedings in Dosso case were held in "special area" whereas in the case in hand the proceedings were held at Peshwar, the High Court could assume jurisdiction over the matter.
' In Sar Khan's case (PLD 1967 SC 149) where a person was tried, convicted and imprisoned within the territorial jurisdiction of the High Court (Peshawar) under section 11, F.C.R. For an offence committed in the Tribal Territory it was ruled that the jurisdiction of the High Court under Article 98, Constitution of Pakistan 1962 to examine the property and legality of everything done within its territories not excluded merely because offence was committed outside its territorial jurisdiction.
' In the Superintendent, Land Customs, Torkham (Khyber Agency) v. Zewar Khan and 2 others (PLD 1969 SC 489) the august Supreme Court held that as the truck carrying non-custom paid goods though apprehended in the Tribal Area but was brought to Peshawar which was within the territorial jurisdiction of the Court, no legitimate exception could be taken to the High Court issuing a writ on the authorities concerned within their jurisdiction to release the truck from such seizure, because the order would have had to be carried out within the territorial limits of the High Court. It was further ruled that if in case an order of the High Court was sought to take effect in a territory outside the limits of the High Court then the question of non-maintainability of writ would arise.
' Following the judgments of the august Supreme Court in Piao Gul's case, Sar Khan's case and Zewar Khan's case, this Court in case of Abdur Rehman and others v. The State (PLD 1971 Pesh. 61) held that where an order is made or any action taken within the territorial limits of the jurisdiction of the High Court and even if it relates to an occurrence having taken place in the Tribal Territory, the High Court would have jurisdiction to examine the legality and propriety of the order passed by any authority within its jurisdiction.
' In Malik Noor Badshah v. Deputy Commissioner, Kohat (PLD 1980 Pesh. 265) rule was laid that the High Court possessed powers to issue writ of Habeas Corpus to examine the authority for the imprisonment of any person held in a prison in territories amenable to the writ jurisdiction of the High Court notwithstanding that the source of authority was, and the offence has been committed, outside that territory.
' In Muhammad Saddiq and others v. Government of Pakistan (1981 SCMR 1022) it was ruled that ouster of jurisdiction of the superior Courts is not to be lightly assumed and the exclusion will be only in those matters which are exclusively concerned with the Tribal Areas and that the ouster clause cannot be so interpreted as to exclude the jurisdiction of the superior Courts in which any part of the cause of action accrues, or any effective action is taken or performed at a place outside the Tribal Areas, affecting the life, liberty or property of a citizen and thereby the jurisdiction was assumed.
' In Nabi Bakhsh and others v. State (PLD 1991 Pesh. 10) it was held that where there was a dispute between the parties relating to partnership business and the agreement deed was executed in settled area, venue of the business was also in the settled area and all transactions took place in the settled area mere fact that one of the parties to the dispute originally belonged to the Tribal Area would not confer jurisdiction on the political authorities.
' However, in case of Haji Saleem Khan and others v. Commissioner, FCR, Kohat (1996 CLC 1702), a Division Bench of this Court took a contrary view by holding that the effect of exclusion of the jurisdiction of the High Court under Article 247(7) of the Constitution of the Islamic Republic of Pakistan would be absolute notwithstanding the fact that the officer concerned who passed the impugned order was in the settled area but for administrative reasons.
' Finally, we would take up the latest judgment reported in 1991 SCMR 2400 (Qaum Bangash and others v. Qaum Turi and others) where the legislative history of the High Courts and extension of their jurisdiction with reference to President's Order No.28 of 1970 or Act XXVI of 1973 read with Article 246 of the Constitution of 1973 and the effect of Article 247(7) was considered. The phrase/expression "in relation to Tribal Area" was also scrutinized and it was held that where dispute relating to land situated in Tribal Areas or criminal offences took place in the territorial areas compromised therein and the parties resided within the Tribal Area, the Peshawar High Court would not have jurisdiction in the matter.
14. Reverting back to the facts of the case to see if by application of case-law cited above, and keeping in view the documents appended with the writ petition whether the matter in dispute between the parties and the proceedings that have been carried out so far and to see their legality and propriety would fall within the jurisdictional domain of this Court, we are of the firm view that the facts of this case would attract the finding recorded by the precedent case-law where this Court would assume the jurisdiction.
15. Admittedly, the petitioners are not residents of Tribal Area nor do they belong thereto. The notices issued by the respondents in the first instance for appearance does not contain any allegation that they were required by the political authorities in connection with any matter where any transaction or even part of such transaction has taken place in the Tribal Area. The application filed by the respondents on 17-2-1990 consequent to which the political authorities took cognizance of the matter is also silent regarding the place where the cause of action has accrued to the applicant, to the contrary it refers to a cause of action which appears to have occurred in the settled area except that the applicant belongs to the tribe.
In absence of any evidence on the record that the dispute, cognizance of which was taken by the political authorities and the matter that was referred to the Council of Elders was within the contemplation of expression "in relation to Tribunal Areas" the assumption of jurisdiction by the political authorities was uncalled for and as the petitioners belong and reside in the settled area and as the business transactions, if any, the issuance of cheques in favour of the respondents have all taken place in the settled area, the jurisdiction over the matter would rest with the ordinary Courts of the settled area and not the political authorities.
' We also take notice of the fact that earlier when two writ petitions were filed by the petitioners in this Court they were directed to approach the political authorities which they did and have raised objections to the jurisdiction of the political authorities which question was never decided and hence the petitioners were constrained to file the instant writ petition.
16. As held above, it transpires from the file that one Bakhtiar a nephew of Haji Ghulam Nabi father of the two petitioners had some business transaction with respondent Pir Akbar Din in respect of hire and purchase of the vehicles and it was during the course of such business that the parties came up with some claims and counter-claims regarding outstanding amount, the respondent by taking advantage of his position being a tribe man from the F.A.T.A. Approached the political authorities who without applying their mind to the legality of the action taken by them took the cognizance and referred the matter to the Council of Elders, such was a total misuse of lawful authority vested in the political authorities and this Court would not be a party to allow the illegality to perpetuate.
' Where the petitioners belong to the settled area and the dispute, if any, apparently germanes from some business transaction having taken place at Peshwar and where nothing was done between the parties in the Tribal Areas except that one of the parties belongs thereto, the jurisdiction of this Court would not be ousted within the perview of the Article 247(7) of the Constitution and under Article 199 of the Constitution of the Islamic Republic of Pakistan this Court would have the jurisdiction to look into the matter and protect the rights of citizens of the State as guaranteed under the Constitution and to see that a citizen residing within the territorial jurisdiction of this Court is dealt with in accordance with law and not otherwise.
' The result would he that we would allow this writ petition and declare that all actions taken, orders passed and the proceedings which are pending before the political authorities between the parties are illegal without lawful authority, and passed without jurisdiction and are ineffective against the rights of the petitioners. The private respondent if have any grievance, however, would be at liberty to seek his remedy from a Court of ordinary jurisdiction.