TALAAT QAYUM QURESHI, J.--- Brief facts giving rise to the writ petition in hand are that on 3-3-2001 at the instance and directions of Assistant Political Agent, Bara Khyber Agency the Khasradar Squad under the supervision of Political Tehsildar Bara Khyber Agency respondent No,3 arrested Muhammad Nisar, father of petitioner No,1 from village Garhi Mali Khel situated within the jurisdiction of Bada Ber Police Station, Peshawar and took him to Tribal Territory of Khyber Agency and confined him there. The said action was done without observing the legal formalities. The petitioner No,1 searched for his father and came to know that his father was confined in lock-up of respondents Nos.1 to 3 and that the said respondents also wanted to arrest petitioner No,2. The petitioner No,1 made an application on 17-4-2001 for release of his father and respondent No,2 vide order, dated 19-4-2001 directed that the detenu, father of the petitioner be released on bail and the sureties be local and reliable. Despite bail granting order, the detenu was not released, therefore, the petitioners invoked the Constitutional jurisdiction of this Court, seeking the declaration that the action of respondents Nos.1 to 3 whereby father of petitioner No,1 was arrested was illegal, without lawful authority and without jurisdiction. A prayer for the release of detenu from the clutches of respondents Nos.1 to 3 has also been made in the writ petition.
2. Messrs Muhammad Khurshid Khan and Raza Khan Mohmand, Advocates, the learned counsel representing the petitioners argued that the father of petitioner No,1 (detenu) and respondent No,4 were residents of District Peshawar and no dispute took place between Muhammad Nisar, detenu and respondent No,4 at Bara (Khyber Agency). On 1-10-1999 Muhammad Nasir Abid Khattak sold one Suzuki Alto Model 1992 having Registration No,MNP 8678, Engine No,B 129398, Chassis No,668152 for a sale consideration of Rs,1,50,000 to Nisar Khan (detenu) out of which a sum of Rs,40,000 was paid and remaining amount of Rs,1,10,000 were to be paid within two months i,e, 30-11-1999. The said transaction took place at Peshawar and agreement, dated 1-10-1999 was also executed by and between the parties at Peshawar. If at all there was any dispute regarding non-payment of remaining amount by Nisar Khan (detenu), the Civil Courts at Peshawar had jurisdiction to adjudicate upon the matter and respondents Nos.1 to 3 had no jurisdiction at all.
3. It was further argued that respondents Nos.1 to 3 had no lawful authority to arrest the father of petitioner No,1 from settled area and confine him in their lock-up at Bara, therefore, the arrest and detention of detenu is illegal unlawful and without jurisdiction.
4. On the other hand Mr. Iqbal Ahmad Durrani, the learned counsel representing respondents Nos.1 to 3 argued that this Court lacks jurisdiction under Article 247 of the Constitution as money dispute arose between the parties at Bara, Khyber Agency. It was also argued that Muhammad Nazir Abid Khattak on 27-1-2001 had submitted an application against Nisar Khan (father of petitioner No,1) and Shad Muhammad, petitioner No,2 to the effect that Nisar Khan was liable to pay Rs,1,10,000 and since he (Nisar Khan) was running his business at Bara Khyber Agency, therefore, he was arrested from .Shahbaz Plaza Bara where he was running his business by the Khasadars of Tehsil Bara in presence of witnesses, therefore, there was no need to comply with the provisions of section 86-A, Cr.P.C. His arrest and detention by respondents Nos.1 to 3 was lawful.
5. We have heard the learned counsel for the parties and perused the record.
6. We first of all take the question of jurisdiction. The argument of the learned counsel for the respondents Nos.1 to 3 that this Court in view of Article 247(1) of the Constitution of the Islamic Republic of Pakistan lacks jurisdiction has no substance for the reasons firstly it would 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, a High Court is powerless to come to rescue of a person whose fundamental rights have been flagrantly violated in its territorial jurisdiction. Secondly, if the Political Authorities had no jurisdiction in a matter and while acting in colourful exercise of their powers and while usurping the powers of ordinary civil and criminal Courts compel a person to submit to their jurisdiction which did not vest in them, High Court would be helpless to interfere.
Thirdly, when the parties belong to settled area and the dispute, if any, for the business transaction having taken place in the settled area (Peshawar), the jurisdiction of this Court would not be ousted and this Court would have the jurisdiction to look into the matter and protect the rights of citizen as guaranteed under the Constitution. Fourthly, when it is brought to the notice of any Court that a citizen of the State is not being dealt with in accordance with law, it is the duty of every such Court to ensure that a citizen residing within the territorial jurisdiction of the said Court is dealt with in accordance with law and not otherwise.
7. This Court in Haji Ghulam Sarwar v. Pir Akbar Din 2000 MLD 1643, while placing reliance upon Piao Gul v. The State PLD 1960 SC (Pak.) 307, Sar Khan v. The State PLD 1967 SC 149, Superintendent, Land Customs Torkham (Khyber Agency) v. Zewar Khan and 2 others PLD 1969 SC 489, Abdur Rehman and others v. The State PLD 1971 Pesh. 61, Malik Noor Badshah v. Deputy Commissioner Kohat PLD 1980 Pesh. 265, Muhammad Sadiq and others v. Government of Pakistan 1981 SCMR 1022 and Nabi Bakhsh and others v. The State PLD 1991 Pesh: 10, held:-- "Where the petitioners belong to the settled area and the dispute, if any, apparently germaning from some business transaction having taken place at Peshawar and where nothing was done between the parties in the Tribal Area except that one of the parties belongs thereto, the jurisdiction of this Court would not be ousted within the purview of the Article 247(7) of the Constitution and under Article 199 of the Constitution of 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 be 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."
8. Keeping in view the dicta laid down in the aforementioned judgments of superior Courts we are of the firm view that this Court, keeping in view the facts and circumstances of the case in hand has the jurisdiction.
9. The argument of the learned counsel for the petitioner that the father of petitioner No,1 was arrested on 3-3-2001 at village Garhi Mali Khel situated within the jurisdiction of Bababer Police Station, Peshawar and was taken into custody at Bara (Khyber Agency) by the Khasadars Squad, therefore, the respondents Nos.1 to 3 had no jurisdiction has a force in it. This Court vide order, dated 11-5-2001 directed respondents Nos.1 to 3 to furnish comments, which were filed by them duly supported with Annexures. We have perused the comments and documents append therewith.
Dilawar Khan, petitioner No,1 on 17-4-2001 submitted application before respondent No,3 for release of his father on bail, on which the respondent No,3 submitted the following report to respondent No,2:-- "The applicant prays for release of his father Muhammad Nisar son of Sardar Ali, who was arrested in lieu of Shad Muhammad against whom one Tariq Khattak claims some outstanding amount.
Shad Muhammad is the brother of arrested Nisar Muhammad. The applicant prays that they are ready to settle the dispute through Jirga and in this connection they have held several Jirgas with Tariq Khattak but all in vain.
' It is suggested that Nisar Muhammad who is in lock-up for the last about 2 months would be released on bail and the complainant Tariq Khattak and the defendants Muhammad Nisar/Shad Muhammad would be summoned to your Court at Khyber House for settlement of the dispute.
' Submitted please."
' Respondent No2. Passed the following order on 19-4-2001:-- "As suggested, but the sureties should be local/reliable and the case be fixed for hearing with intimation to Khattak."
10. The perusal of the report submitted by respondent No,3 shows that Muhammad Nisar, father of petitioner No,1 was arrested in lieu of his brother Shad Muhammad (petitioner No,2) against whom one Tariq Khattak claimed some outstanding amount, but the respondents Nos.1 to 3 in the comments filed by them have taken entirely a different stand. In the comments they have mentioned that a complaint was filed by one Muhammad Nazir Abid Khattak, F.C. F.I.A. Against Muhammad Nisar for payment of Rs,1,10,000, therefore, Muhammad Nisar was arrested from the limits of Shahbz Plaza at Bara (Khyber Agency) by Khasadars. Neither the date of his arrest has been mentioned in the comments nor the same finds mention in the statements of person in presence of whom he was allegedly arrested. An application submitted by Muhammad Nazir Khattak has also been annexed with the comments. Muhammad Nazir Khattak, applicant has been shown to be resident of Wardak Road Kababian, Peshawar. He has annexed copy of an agreement, dated 1-10-1999 allegedly executed by Nisar Khan. Perusal of the said agreement shows that Muhammad Nazir Khattak sold Suzuki Alto Car Model 1992 having Registration No,MNP 8678 for a sale consideration of Rs,1,50,000 out of which he was paid Rs,40,000 and remaining amount of Rs,1,10,000 was to be paid before 30-11-1999. Not only the said transaction took place at Peshawar but the delivery of vehicle, part payment of Rs,40,000 was also made at Peshawar and the said agreement, dated 1-10-1999 was executed by and between the parties at Peshawar. None of the parties to the agreement belonged to tribal area, therefore, the Authorities in the tribal area had no jurisdiction in the matter and the father of the petitioner No,1 could neither be arrested from the settled area nor petitioner No,2 could be harassed by the said Authorities nor they could be compelled to submit to the jurisdiction of respondents Nos.1 to 3.
11. In order to assume jurisdiction under Frontier Crimes Regulation 1901 it is requirement of section 8 of FCR that either or any of the parties should belong to a frontier tribe and that there is a dispute which is likely to lead to bloodshed or disturbance of peace. Although this Court time and again has held that even if one of the parties belongs to the tribal area, if the dispute is of civil nature and the business transaction had taken place in the settled area and nothing was done by the parties in tribal area, the recourse should be had to the normal Civil Courts within whose territorial jurisdiction cause of action had accrued. Similarly if a crime is committed in settled area, a person guilty of, offence cannot be picked up/arrested from the settled area and tried by the Political Authorities under the FCR, but the Political Authorities in, the tribal area without caring for the law applicable and the judgments of this Court as well as Supreme Court of Pakistan malafidely assume jurisdiction in the matters, harass and humiliate the peaceful citizens though they do not have jurisdiction in such matters. This practice has gained momentum because there appears to be no check on their unlimited powers which they have themselves assumed. In a similar case titled Mst. Shaheen Rafiq v. Khanzada and 3 others 1989 CLC 2049 it was held:-- "After hearing the learned counsel for the parties and going through the record we have come to the conclusion that the proceedings initiated by the Assistant Political Agent by making a reference to the Jirga under section 8 of the Frontier Crimes Regulation were without jurisdiction. It is not disputed that the amount of Rs,39,750 was paid by respondent No,1 in Tangi Branch Office of the Company which is located in Tehsil Charsadda, District Peshawar. Similarly, the receipt relied upon by respondent No,1 was executed by the petitioner at Peshawar whereby she undertook that either the Company would provide the Tractor to respondent No,1 or his earnest money shall be refunded.
From these facts it is clear that respondent No,1 had a cause of action against the Managing Director of the Company on whose behalf the money was received by the Tangi Branch. Office of the Company. The petitioner did not personally receive any amount from respondent No,1 nor did she undertake any personal responsibility for repayment of the money. Furthermore, the cause of action having arisen within the settled area, respondent No,1 could seek his remedy in a Court of law within whose jurisdiction the cause of action had accrued. There being no nexus between the .Subject-matter of the dispute and the tribal area of Mohmand Agency. It is also established that by resorting to abduction of the petitioner's father to the tribal area, the petitioner was forced and compelled to appear before the Political Authorities to give her consent to the constitution of a Jirga. Section 8 of the Frontier Crimes Regulation is also not attracted for there is nothing on the file to show that the alleged dispute was likely to cause a blood-feud or murder of culpable homicide etc. The section further provides that a reference can be made to the Jirga only if no suit was pending in respect of the dispute. In view of the pendency of liquidation proceedings in the Lahore High Court at the instance of respondent No,1 and other creditors it can be said that a suit in respect of the dispute was already pending at the relevant time. Furthermore, the criminal case filed by respondent No,1 had also resulted in acquittal of the petitioner and only the Managing Director of the Company was held responsible for playing fraud who was also convicted and sentenced by the Summary Military Court as stated above. In this background of the case, the entire proceedings initiated by the Assistant Political Agent at the instance of respondent No,1 were not only without jurisdiction but also tainted with mala fides. The record shows that respondent No,1 had been continuously residing in the settled area and his address is given as 'resident of Mauza Khat Killi Tehsil Charsadda, District Peshawar' in all the relevant documents available on the file and even before the Political Authorities he had given the same address. Even if respondent No,1 belonged to Utman Khel Tribe, it is difficult to hold that section 8 of the Regulation which provides for reference to Jirga of certain civil disputes which are likely to lead to bloodshed or disturbance of peace or which involve a party belonging to a 'Frontier tribe' would be applicable to the case because respondent No,1 though a member of a 'Frontier tribe' was permanently residing in the settled area in the ordinary course of his business. Further, the cause of action had also arisen in the settled area where the money was paid by respondent No,1 to the Branch Office of the Company at Tangi in Tehsil Charsadda and the aforesaid receipt was also executed by the petitioner at Peshawar. In Muhammad Siddiq and others v. Government of Pakistan and others 1981 SCMR 1022 it was held that:- ' The ouster of jurisdiction of the superior Courts is not to be lightly assumed, and the plain meaning and intention of the ouster clause appears to be to exclude the jurisdiction of the Supreme Court and the High Courts only in those matters, which are exclusively concerned with Tribal areas, and that the ouster clause cannot be interpreted so as to exclude the jurisdiction of a superior Court in matters in which any part of the cause of action accrues, or any effective action or step is taken or performed in, or at, a place outside the Tribal area, affecting the life, liberty or property of a citizen of Pakistan, or any other person for the time being in Pakistan, and having the right to be governed by the ordinary law of the land and in accordance with the procedures obtaining thereunder'.
' Keeping in view the above principle and also the fact that the final order in the case was passed by the Commissioner, Frontier Crimes Regulation (FR) outside the Tribal area, this Court obviously would have the necessary jurisdiction."
12. In the present case, as mentioned above, none of the parties belonged to tribal area nor there was any dispute, which was likely to lead to bloodshed or disturbance of peace in the tribal area.
The transaction about the sale of the motor car took place at Peshawar, the possession of the vehicle and part payment was made at Peshawar and the father of petitioner No,1 had undertaken to pay the remaining amount of Rs,1,10,000 at Peshawar. If the said amount was still outstanding the aggrieved party could invoke the jurisdiction of the Civil Court having jurisdiction in the matter for redressal of his grievance. The respondents Nos.1 to 3 have, therefore, wrongly assumed jurisdiction on the application submitted by Muhammad Nazir Abid Khattak and arrested him from the settled area which do not fall under the jurisdiction of respondents Nos.1 to 3. We, therefore, allow the writ petition in hand and declare that the action, whereby respondents Nos.1 to 3 took cognizance on the application submitted by Muhammad Nazir Abid Khattak and consequent arrest of the father of petitioner No,1 are illegal, without jurisdiction and tainted with mala fide.
Respondents Nos.1 to 3 are directed to set Muhammad Nisar detenu at liberty and he be forthwith released.